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["Table of contents"]
[null,null,"Cmth","NSW","ACT","Queensland","SA","NT","Tasmania"]
["Click on the Part headings to go to the relvant sheet. \n\n** Note: In some sheets, the divisions are grouped for ease of reading. Press the \"+\" and \"-\" signs on the left hand side to expand and collaspe each division.  Press \"1\" to collaspe all sections and \"2\" to expand all sections at once.\n\nOrange = expected jurisdictional variation. Red = other variation. \nWhere a provision includes both an expected jurisdictional variation and another variation, the provision will be coloured red."]
[]
["Part 1 Introduction"]
["Division 1 Introduction"]
[1,"Citation","-","-","-","-","-","-","-"]
[2,"Commencement",null,"-","X","X","X","X","X"]
["Division 2 Object"]
[3,"Object","-",null,"X","X"]
["Division 3 Interpretation "]
[null,"Subdivision 1 Definitions "]
[4,"Definitions","X","X","X","X","X","X","X"]
[null,"Subdivision 2 Other important terms"]
[5,"Meaning of person conducting a business or undertaking",null,null,"X",null,null,"X"]
[6,"Meaning of supply"]
[7,"Meaning of worker","X",null,"X",null,"X"]
[8,"Meaning of workplace"]
[9,"Examples and notes",null,null,"X","X"]
["Division 4 Application of the Act "]
[10,"Act binds the Crown","-",null,"-","-"]
[11,"Extraterritorial application","-","-","-","-","-","-","-"]
[12,"Scope","-","-","-","X","-","-","-"]
["12AA",null,null,null,"X"]
["12A",null,"X","X","-",null,null,"X"]
["12B",null,"X",null,"-",null,null,"X"]
["12C",null,"X"]
["12D",null,"X"]
["12E",null,"X"]
["12F",null,"X"]
[null,"Part 2 Health and Safety Duties"]
["Division 1 Introduction"]
["Subdivision 1 Principles that apply to duties"]
[13,"Principles that apply to duties",null,null,"X"]
[14,"Duties not transferrable"]
[15,"Person may have more than 1 duty"]
[16,"More than 1 person can have a duty",null,null,"X"]
[17,"Management of risks",null,null,null,null,"X"]
["Subdivision 2 What is reasonably practicable"]
[18,"What is reasonably practicable in ensuring health and safety"]
["Division 2 Primary Duty of Care"]
[19,"Primary duty of care",null,null,"X"]
["Division 3 Further Duties of persons conducting businesses or undertakings"]
[20,"Duty of persons conducting businesses or undertakings involving management or control of workplaces"]
[21,"Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces"]
[22,"Duties of persons conducting businesses or undertakings that design plant, substances or structures",null,null,"X"]
[23,"Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures",null,null,"X"]
[24,"Duties of persons conducting businesses or undertakings that import plant, substances or structures",null,null,"X"]
[25,"Duties of persons conducting businesses or undertakings that supply plant, substances or structures",null,null,"X"]
[26,"Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures"]
["26A",null,null,null,null,"X"]
["Division 4 Duties of officers, workers and other persons"]
[27,"Duty of officers",null,null,"X"]
[28,"Duties of workers",null,null,"X"]
[29,"Duties of other persons at the workplace",null,null,"X"]
["Division 5 Offences and penalties"]
[30,"Health and safety duty",null,null,"X"]
[31,"Reckless conduct—Category 1","-",null,"X","-","-","-","-"]
[32,"Failure to comply with health and safety duty—Category 2","-",null,"-","-","-","-","-"]
[33,"Failure to comply with health and safety duty—Category 3","-",null,"-","-","-","-","-"]
["33A",null,null,null,null,"X"]
[34,"Exceptions",null,null,"X",null,"X"]
["Part 2A"]
["34A-34D",null,null,null,null,"X",null,"X"]
[null,"Part 3 Incident Notification"]
[35,"What is a notifiable incident"]
[36,"What is a serious injury or illness",null,null,"X"]
[37,"What is a dangerous incident",null,null,"X"]
[38,"Duty to notify of notifiable incidents","-","X","X","-",null,"-","-"]
[39,"Duty to preserve incident sites","-","X","-","-",null,"-","-"]
[null,"Part 4 Authorisations "]
[40,"Meaning of authorised"]
[41,"Requirements for authorisation of workplaces","-",null,"-","X",null,"-","-"]
[42,"Requirements for authorisation of plant or substance","-",null,"-","X",null,"-","-"]
[43,"Requirements for authorisation of work","-",null,"-","X",null,"-","-"]
[44,"Requirements for prescribed qualifications or experience","-",null,"-","X",null,"-","-"]
[45,"Requirement to comply with conditions of authorisation","-",null,"-","-",null,"-","-"]
[null,"Part 5 Consultation, co-operation and co-ordination"]
["Division 1 Consultation, co-operation and co-ordination between duty holders"]
[46,"Duty to consult with other duty holders","-",null,"X","X",null,"-","-"]
["Division 2 Consultation with workers"]
[47,"Duty to consult workers","-",null,"X","X",null,"-","-"]
[48,"Nature of consultation"]
[49,"When consultation is required","X"]
["49A-49C",null,null,null,"X"]
["Division 3 Health and safety representatives"]
[null,"Subdivision 1 Request for election of health and safety representatives"]
[50,"Request for election of health and safety representative"]
["50A-50B",null,null,null,"X"]
["Subdivision 2 Determination of work groups"]
[51,"Determination of work groups",null,null,"X"]
[52,"Negotiations for agreement for work group","-","X","X","X",null,"-","-"]
[53,"Notice to workers","-",null,"-","X",null,"-","-"]
[54,"Failure of negotiations",null,null,"X"]
["Subdivision 3 Multiple-business work groups"]
[55,"Determination of work groups of multiple businesses",null,null,"X"]
[56,"Negotiation of agreement for work groups of multiple businesses","-",null,"-","X",null,"-","-"]
[57,"Notice to workers","-",null,"-","X",null,"-","-"]
[58,"Withdrawal from negotiations or agreement involving multiple businesses"]
[59," Effect of Subdivision on other arrangements"]
["Subdivision 4 Election of health and safety representatives"]
[60,"Eligibility to be elected"]
[61,"Procedure for election of health and safety representatives","-",null,"-","X",null,"-","-"]
[62,"Eligibility to vote"]
[63,"When election not required"]
[64,"Term of office of health and safety representative"]
[65,"Disqualification of health and safety representatives","-","-","-","X","-","-","-"]
[66,"Immunity of health and safety representatives",null,null,"-"]
[67,"Deputy health and safety representatives",null,null,"X"]
["67A-67F",null,null,null,null,"X"]
["Subdivision 5 Powers and functions of health and safety representatives"]
[68,"Powers and functions of health and safety representatives","X","X","X","X","X","X","X"]
[69," Powers and functions generally limited to the particular work group"]
["Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives"]
[70,"General obligations of person conducting business or undertaking","-",null,"X","X",null,"-","X"]
[71,"Exceptions from obligations under section 70(1)","X","X","X","X","X","X","X"]
[72,"Obligation to train health and safety representatives","-",null,"X","X","X","-","X"]
["72A",null,null,null,"X"]
[73,"Obligation to share costs if multiple businesses or undertakings",null,null,"X"]
[74,"List of health and safety representatives","X","X","X","X","X","X","X"]
["Division 4 Health and safety committees"]
[75,"Health and safety committees","X",null,"-","X",null,"-","X"]
[76,"Constitution of committee",null,null,"X","X"]
["76A",null,null,"X"]
[77,"Functions of committee"]
[78,"Meetings of committee",null,null,null,"X"]
[79,"Duties of person conducting business or undertaking","-",null,"-","x",null,"-","-"]
["79A",null,null,null,"X"]
["Division 5 Issue resolution"]
[80,"Parties to an issue"]
[81,"Resolution of health and safety issues"]
[82,"Referral of issue to regulator for resolution by inspector",null,null,null,"X"]
["Division 6 Right to cease or direct cessation of unsafe work"]
[83,"Definition of cease work under this Division"]
[84,"Right of worker to cease unsafe work"]
[85,"Health and safety representative may direct that unsafe work cease",null,null,"X"]
[86,"Worker to notify if ceases work",null,null,null,null,"X"]
[87,"Alternative work"]
[88,"Continuity of engagement of worker"]
[89,"Request to regulator to appoint inspector to assist",null,null,null,"X"]
["Division 7 Provisional improvement notices"]
[90,"Provisional improvement notices",null,null,"X"]
[91,"Provisional improvement notice to be in writing"]
[92,"Contents of provisional improvement notice"]
[93,"Provisional improvement notice may include recommendations to remedy contravention","X","X","X","X","X","X","X"]
[94,"Minor changes to provisional improvement notice"]
[95,"Issue of provisional improvement notice"]
[96,"Health and safety representative may cancel notice"]
[97,"Display of provisional improvement notice","-",null,"-","X",null,"X","-"]
["97A",null,null,null,null,"X"]
[98,"Formal irregularities or defects in notice"]
[99,"Offence to contravene a provisional improvement notice","-",null,"-","X",null,"-","-"]
[100,"Request for review of provisional improvement notice"]
[101,"Regulator to appoint inspector to review notice"]
[102,"Decision of inspector on review of provisional improvement notice"]
["102A-102G",null,null,null,null,"X"]
["Division 8 Part not to apply to prisoners"]
[103,"Part does not apply to prisoners",null,"-","-","-"," ","-","-"]
["Part 5A"]
["103A-103I",null,null,null,null,"X"]
["Part 6 Discriminatory, coercive and misleading conduct"]
["Division 1 Prohibition of discriminatroy, coercive or misleading conduct","Division 1 Prohibition of discriminatory, coercive or misleading conduct"]
[104,"Prohibition of discriminatory conduct","X",null,"X","X",null,"X","-"]
[105,"What is discriminatory conduct"]
[106,"What is a prohibited reason",null,null,"X","X"]
[107,"Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct","X",null,"X","X",null,"X","-"]
[108,"Prohibition of coercion or inducement","-","-","-","-",null,"X","-"]
[109,"Misrepresentation","-",null,"X","-",null,"X","-"]
["Division 2 Criminal proceedings in relation to discriminatory conduct"]
[110,"Proof of discriminatory conduct",null,null,null,"-","-","-"]
[111,"Order for compensation or reinstatement"]
["Division 3 Civil proceedings in relation to discriminatory or coercive conduct"]
[112,"Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct","-","-","X","-","-","-","-"]
[113,"Procedure for civil actions for discriminatory conduct",null,null,"X"]
["Division 4 General"]
[114,"General provisions relating to orders","-","-","-","-","-","-","-"]
[115,"Prohibition of multiple actions"]
["Part 7 Workplace entry by WHS entry permit holders"]
["Division 1 Introductory"]
[116,"Definitions","-","-","-","-","-","-","-"]
["Division 2 Entry to inquire into suspected contraventions"]
[117,"Entry to inquire into suspected contraventions","X","X","X","X","X","X","X"]
[118,"Rights that may be exercised while at workplace","-",null,"X","X","X",null,"X"]
[119,null,"X","X","X","X","X","X","X"]
[120,"Entry to inspect employee records or information held by another person","X","X","X","X","X","X","X"]
["Division 3 Entry to consult and advise workers"]
[121,"Entry to consult and advise workers"]
[122,"Notice of entry",null,null,null,"X"]
["Division 4 Requirements for WHS entry permit holders"]
[123,"Contravening WHS entry permit conditions","X","X","X","X",null,"X","-"]
[124,"WHS entry permit holder must also hold permit under other law","-","-","-","-","-","-","X"]
[125,"WHS entry permit to be available for inspection","-",null,null,"-",null,null,"-"]
[126,"When right may be exercised","-",null,null,"-",null,null,"-"]
[127,"Where the right may be exercised"]
[128,"Work health and safety requirements","-",null,null,"-",null,null,"-"]
[129,"Residential premises","-",null,null,"-",null,null,"-"]
[130,"WHS entry permit holder not required to disclose names of workers."]
["Division 5 WHS entry permits"]
[131,"Application for WHS entry permit","-","-","X","-","X","-","X"]
[132,"Consideration of application",null,null,"-","-",null,"-","-"]
[133,"Eligibility criteria","-","-","-","-","X","-","-"]
[134,"Issue of WHS entry permit",null,null,"-","X",null,"-","-"]
[135,"Conditions on WHS entry permit",null,null,"-","-",null,"-","-"]
[136,"Term of WHS entry permit"]
[137,"Expiry of WHS entry permit","-","-","-","-","-","-","X"]
[138,"Application to revoke WHS entry permit","-","-","x","-","-","-","-"]
[139,"Authorising authority must permit WHS entry permit holder to show cause",null,null,"x","-",null,"-","-"]
[140,"Determination of application",null,null,"-","X",null,"-","X"]
["Division 6 Dealing with disputes"]
[141,"Application for assistance of inspector to resolve dispute"]
["141A",null,null,null,null,"X"]
[142,"Authorising authority may deal with a dispute about a right of entry under this Act","X",null,"-","X",null,"-","-"]
["142A",null,null,null,null,"X"]
[143,"Contravening order made to deal with dispute","-",null,null,"X",null,null,"-"]
["Division 7 Prohibitions"]
[144,"Person must not refuse or delay entry of WHS entry permit holder","-",null,"X","X",null,null,"-"]
[145,"Person must not hinder or obstruct WHS entry permit holder","-",null,null,"-",null,null,"-"]
[146,"WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace","-","X",null,"-",null,null,"-"]
[147,"Misrepresentations about things authorised by this Part","-",null,null,"X",null,null,"-"]
[148,"Unauthorised use or disclosure of information or documents","-",null,null,"X",null,null,"-"]
["Division 8 General"]
[149,"Return of WHS entry permits","-",null,"-","-",null,"-","-"]
[150,"Union to provide information to authorising authority","-","-","-","X","-","-","X"]
[151,"Register of WHS entry permit holders",null,null,"-","-",null,"-","-"]
["Part 8 The Regulator"]
["Division 1 Functions of regulator"]
[152,"Functions of regulator",null,null,"x","X","-","-","-"]
[153,"Powers of regulator",null,null,"X"]
[154,"Delegation by regulator","-","-","-","-","-","-"]
["Division 2 Powers of regulator to obtain information"]
[155,"Powers of regulator to obtain information","-","X","X","X",null,"-","-"]
["155A",null,null,"X"]
["Part 9 Securing Compliance "]
["Division 1 Appointment of inspectors"]
[156,"Appointment of inspectors","-","-","x","-","-","-","-"]
[157,"Identity cards",null,"X","-","X"]
[158,"Accountability of inspectors",null,null,"X","X"]
[159,"Suspension and ending of appointment of inspectors"]
["Division 2 Functions and powers of inspectors"]
[160,"Functions and powers of inspectors","X",null,null,"X","X","X","-"]
[161,"Conditions on inspectors' compliance powers"]
[162,"Inspectors subject to regulator's directions",null,null,null,"X"]
["Division 3 Powers relating to entry"]
["Subdivision 1 General powers of entry"]
[163,"Powers of entry"]
[164,"Notification of entry",null,null,null,"X"]
[165,"General powers on entry","-","X","X","X",null,"-","-"]
[166,"Persons assisting inspectors",null,null,null,"X"]
["Subdivision 2 Search warrants"]
[167,"Search warrants",null,"-","X",null,"-","-"]
["167A",null,null,null,"-","-",null,null,"X"]
[168,"Announcement before entry on warrant",null,"-","X"]
[169,"Copy of warrant to be given to person with management or control of place",null,"-","-","X","X"]
["169A",null,null,null,"X"]
["Subdivision 3 Limitation on entry powers"]
[170,"Places used for residential purposes",null,null,"X",null,"X"]
["Subdivision 4 Specific powers on entry"]
[171,"Power to require production of documents and answers to questions","-",null,"-","X","X","-","-"]
[172,"Abrogation of privilege against self-incrimination","X",null,"X","X","X"]
[173,"Warning to be given",null,null,null,null,"X"]
[174,"Powers to copy and retain documents",null,null,null,"X"]
[175,"Power to seize evidence etc.",null,"X","X","X"]
[176,"Inspector's power to seize dangerous workplaces and things"]
[177,"Powers supporting seizure",null,null,"X","X",null,"-","-"]
[178,"Receipt for seized things"]
[179,"Forfeiture of seized things",null,null,"-"]
[180,"Return of seized things"]
[181,"Access to seized things"]
["Division 4 Damage and compensation"]
[182,"Damage etc. to be minimised"]
[183,"Inspector to give notice of damage"]
[184,"Compensation","X"]
["Division 5 Other matters"]
[185,"Power to require name and address","X","X","X","X",null,"-","-"]
["185A",null,null,"X"]
[186,"Inspector may take affidavits",null,null,null,null,null,"X"]
[187,"Attendance of inspector at coronial inquests","-",null,null,"X","-","X","-"]
["-"]
[188,"Offence to hinder or obstruct inspector","-",null,null,"X",null,"X","-"]
[189,"Offence to impersonate inspector","-",null,"-","-",null,"X","-"]
[190,"Offence to assault, threaten or intimidate inspector","X",null,"X","X",null,"X","-"]
["Part 10 Enforcement Measures "]
["Division 1 Improvement notices"]
[191,"Issue of improvement notices",null,null,"X"]
[192,"Contents of improvement notices"]
[193,"Compliance with improvement notice","-",null,"-","X",null,"-","-"]
[194,"Extension of time for compliance with improvement notices"]
["Division 2 Prohibition notices"]
[195,"Power to issue prohibition notice"]
[196,"Contents of prohibition notice",null,null,"X"]
[197,"Compliance with prohibition notice",null,null,"-","X",null,"-","-"]
["Division 3 Non-disturbance notices"]
[198,"Issue of non-disturbance notice"]
[199,"Contents of non-disturbance notice",null,null,null,"X"]
[200,"Compliance with non-disturbance notice","-",null,"X","-",null,"-","-"]
[201,"Issue of subsequent notices"]
["Division 4 General requirements applying to notices"]
[202,"Application of Division"]
[203,"Notice to be in writing"]
[204,"Directions in notices"]
[205,"Recommendations in notice"]
[206,"Changes to notice by inspector"]
[207,"Regulator may vary or cancel notice"]
[208,"Formal irregularities or defects in notice"]
[209,"Issue and giving of notice",null,"X"]
[210,"Display of notice","-",null,"-","X",null,"-","-"]
["Division 5 Remedial action"]
[211,"When regulator may carry out action"]
[212,"Power of the regulator to take other remedial action"]
[213,"Costs of remedial or other action",null,null,"X"]
["Division 6 Injunctions"]
[214,"Application of Division"]
[215,"Injunctions for noncompliance with notices","-","-","-","-","-","-","-"]
["Part 11 Enforcable undertakings"]
[216,"Regulator may accept WHS undertakings",null,"X","X","X",null,"X"]
[217,"Notice of decision and reasons for decision"]
[218,"When a WHS undertaking is enforceable"]
[219,"Compliance with WHS undertaking","-",null,"-","X",null,"-","-"]
[220,"Contravention of WHS undertaking","-","-","-","-","-","-","-"]
[221,"Withdrawal or variation of WHS undertaking"]
[222,"Proceeding for alleged contravention",null,null,"X","X","X"]
["Part 12 Review of decisions"]
["Division 1 Reviewable decisions"]
[223,"Which decisions are reviewable ","X",null,"X","X","X","X","X"]
["Division 2 Internal review"]
[224,"Application for internal review",null,null,"X"]
[225,"Internal reviewer"]
[226,"Decision of internal reviewer",null,null,"X"]
[227,"Decision on internal review"]
[228,"Stays of reviewable decisions on internal review",null,"X",null,null,null,null,"X"]
["Division 3 External review"]
[229,"Application for external review","-","-","-","X","-","X","-"]
["229A-C",null,null,null,null,"X",null,"X"]
["Part 13 Legal Proceedings"]
["Division 1 General matters"]
["229B",null,null,"X"]
[230,"Prosecutions",null,"X","X","X","X"]
[231,"Procedure if prosecution is not brought","X",null,"X","X",null,"X","X"]
[232,"Limitation period for prosecutions","X",null,"X","X"]
[233,"Multiple contraventions of health and safety duty provision"]
["233A",null,null,"X"]
["Division 2 Sentencing for offences"]
[234,"Application of this Division",null,null,"X",null,"X"]
[235,"Orders generally",null,null,"X"]
[236,"Adverse publicity orders","X",null,"X","X","-"]
[237,"Orders for restoration"]
[238,"Work health and safety project orders"]
[239,"Release on the giving of a court-ordered WHS undertaking"]
[240,"Injunctions",null,null,null,"X"]
[241,"Training orders",null,null,null,"X"]
[242,"Offence to fail to comply with order","-",null,"X","X",null,"-","-"]
["Division 3 Infringement notices"]
[243,"Infringement notices","-","-","-","-","-","-","-"]
["243A",null,null,null,null,null,null,null,"X"]
["243B",null,"X"]
["Division 4 Offences by bodies corporate"]
[244,"Imputing conduct to bodies corporate","-",null,"-",null,null,"-"]
["Division 5 The Crown"]
[245,"Offences and the Crown","-",null,"-","-"]
[246,"WHS civil penalty provisions and the Crown","-",null,"-","-"]
[247,"Officers","-",null,"-","-"]
[248,"Responsible agency for the Crown","-","X","X","X","X"]
["Division 6 Public authorities"]
[249,"Application to public authorities that are bodies corporate",null,null,null,"X"]
[250,"Proceedings against public authorities",null,null,null,"X"]
[251,"Imputing conduct to public authorities"]
[252,"Officer of public authority",null,"X",null,null,null,"X"]
[253,"Proceedings against successors to public authorities",null,"X"]
["Division 7 WHS civil penalty provisions"]
[254,"When is a provision a WHS civil penalty provision",null,"X","X","X"]
[255,"Proceedings for contravention of WHS civil penalty provision",null,"X",null,"X","X","X"]
[256,"Involvement in contravention treated in same way as actual contravention"]
[257,"Contravening a civil penalty provision is not an offence"]
[258,"Civil proceeding rules and procedure to apply",null,null,null,null,"X"]
[259,"Proceeding for a contravention of a WHS civil penalty provision",null,null,null,"X","X"]
[260,"Proceeding may be brought by the regulator or an inspector",null,null,null,"X"]
[261,"Limitation period for WHS civil penalty proceedings",null,null,null,"X"]
[262,"Recovery of a monetary penalty","-",null,"-",null,"X","-"]
[263,"Civil double jeopardy",null,null,null,null,"-"]
[264,"Criminal proceedings during civil proceedings",null,null,"X","X",null,"X","X"]
[265,"Criminal proceedings after civil proceedings"]
[266,"Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings"]
["Division 8 Civil liability not affected by this Act"]
[267,"Civil liability not affected by this Act"]
["Part 14 General"]
["Division 1 General provisions"]
[268,"Offence to give false or misleading information","-",null,"X","x",null,"X","-"]
[269,"Act does not affect legal professional privilege",null,null,"X"]
[270,"Immunity from liability","-",null,"X"]
[271,"Confidentiality of information","X",null,"X","X",null,"X","-"]
["271A",null,null,"X"]
[272,"No contracting out",null,null,"X"]
[273,"Person not to levy workers","-",null,"-","X",null,"-","-"]
["273A",null,"X",null,null,"X"]
["273B",null,"X"]
["Division 2 Codes of practice"]
[274,"Approved codes of practice","X","X","X","X","X","X","X"]
[275,"Use of codes of practice in proceedings",null,null,"X"]
["Division 3 Regulation-making powers"]
[276,"Regulation-making powers","-","X","X","X","X","X","-"]
[277,null,null,null,"X",null,"X"]
[278,null,null,null,"X"]
["Part 15"]
[null,null,null,null,null,"X",null,"X"]
["Part 16"]
[null,null,null,null,null,"X"]
["Schedules"]
["Schedule 1",null,"-","-","X","X","-","-","-"]
["Schedule 2",null,"-","-","-","In accordance with the jurisdictional note,  Queensland has inserted a local provision to establish the relationship between the Act and other Acts in the jurisdiction. The provision works in conjunction with schedule 1 of the Act to provide for the application of the Act to 'matters dealt with under other legislation'. Schedule 1 to the Qld WHS Act differs from Schedule 1 to the model WHS Act. \n\nHowever, together with Schedule 1, the provision also applies the Act to dangerous goods and high risk plant  even if the dangerous goods are not at a workplace or for use in carrying out work. This is beyond the scope of what is permitted by the jurisdictional note for this section.",null,null,"-"]
["Schedule 2A",null,null,null,null,"X"]
["Schedule 3",null,"-","X","X","X",null,null,"-"]
["Schedule 4",null,null,"X",null,null,"X"]
["Schedule 5",null,null,"X",null,"X","X"]
["Schedule 6",null,null,null,null,null,"X"]
["Dictionary",null,null,null,"X"]
[null," ",null," "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Introduction "]
["1 Citation\nThis Act may be cited as the Work Health and Safety Act 2010.\nNote\nSee the jurisdictional note in the Appendix.\n","The Commonwealth WHS Act is cited as the Work Health and Safety Act 2011",null,null,"The NSW WHS Act is cited as the Work Health and Safety Act 2011",null,null,"The ACT WHS Act is cited as the Work Health and Safety Act 2011",null,null,"The Queensland WHS Act is cited as the Work Health and Safety Act 2011",null,null,"The SA WHS Act is cited as the Work Health and Safety Act 2012",null,null,"The NT WHS Act is cited as the Work Health and Safety (National Uniform Legislation) Act 2011",null,null,"The Tas WHS Act is cited as the Work Health and Safety Act 2012"]
["2 Commencement\nThis Act commences on 1 January 2012.\nNote See the jurisdictional note in the Appendix.",null,null,null,"The NSW WHS Act states:\n\nThis Act commences on 1 January 2012 or on such later day as may be appointed by proclamation before 1 January 2012.",null,null,"The commencement provision is omitted from the ACT WHS Act. The end notes to the ACT WHS Act provide that the Act commenced on 1 January 2012.",null,null,"The Qld WHS Act sets out different commencement dates for the provisions. \n\nPart 18, division 2; sections 391 and 401; Schedule 4, Part 1 commenced 1 January 2014.\n\nSections 395, 396, 397(2), 398 to 400 commenced immediately after the commencement of ss 391 and 401.\n\nThe remaining provisions commenced on a day fixed by proclamation, being 1 January 2012.",null,null,"Section 2 was omitted under the Legislation Revision and Publication Act 2002 (SA) in mid-2013. However the provision was included in the SA WHS Act when it first commenced. It provided that the Act commenced on 1 January 2013. ",null,null,"The provision states that the NT WHS Act commences on the day fixed by the Administrator by Gazette notice. The date of commencement was 1 January 2012",null,null,"The provision states that the Tas WHS Act commenced 1 January 2013."]
["Division 2 Objective"]
["3 Object\n(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:\n(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work [or from specified types of substances or plant]; and \nNote: See the jurisdictional note in the Appendix.\n(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety; and\n(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and\n(d) promoting the provision of advice, information, education and training in relation to work health and safety; and\n(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and\n(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and\n(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and\n(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.\n(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work [or from specified types of substances or plant] as is reasonably practicable.\nNote: See the jurisdictional note in the Appendix.\n","In accordance with the jurisdictional note the Commonwealth has elected not to include the words in brackets in ss 3(1)(a) and 3(2) of the model WHS Act. The Commonwealth has not elected to apply the Act to dangerous good and high risk plant (Schedule 1). ",null,null,null,null,null,"The ACT WHS Act has additional words in ss 3(1) and 3(2) which reflect the application of the ACT WHS Act to hazards and risks arising from specified types of substances and plant even if not at work (see Schedule 1). This is consistent with other judisdictions adopting the model WHS Act however the text of Schedule 1 in the ACT WHS Act differs from the Schedule 1 in the model WHS Act. \n\nA note is included at the end of s 3(1) and sets out the effect of the Legislation Act 2001 on the meaning of the word \"Act\" as it occurs in s 3. This note does not alter the effect of the model WHS Act provision.",null,null,"Queensland elected to apply the Qld WHS Act to dangerous goods and high risk plant and included Schedule 1.  The text of Schedule 1 to the Qld WHS Act differs from Schedule 1 in the model WHS Act. \n\nIn paragaph 3(1)(a), Queensland used the words in brackets subject to a slight amendment, listing: \"particular types of substances or plant \" instead of \"specified types of substances or plant\".",null,null,null,null,null,null,null,null,null,null,null,"Williamson v VH & MG Imports Pty Ltd [2017] QDC 56: The court found that it could look at relevant decisions in harmonised interstate jurisdictions for guidance on the appropriate penalty for breach of the Queensland WHS Act (at [70]-[73]). \n\nS & AD Basheer Nominees Pty Ltd v Boland [2018] SASCFC 127:  The court rejected the argument that paragraph 3(1)(f) implies an obligation on the regulator to advise the minister of the regulator's intention to institute a proceeding under the Act before doing so (at [29]).\n\nGrowth Built Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002: The court found that, when exercising powers under s 195 of the Act, inspectors are obliged to test the validity of their beliefs of the risk posed to health and safety when issuing safety enforcement notices. This was inferred from the object of protecting workers under paragraph 3(1)(a) and subsection 3(2) of the Act (at [59]). \n"]
["Division 3 Interpretation"]
["Subdivision 1 Definitions"]
["4 Definitions\nIn this Act:\napproved code of practice means a code of practice approved under Part 14.\nauthorised, in Part 4—see section 40.\nauthorising authority means:\nNote\nSee the jurisdictional note in the Appendix.\nCategory 1 offence—see section 31.\nCategory 2 offence—see section 32.\nCategory 3 offence—see section 33.\ncompliance powers means the functions and powers conferred on an inspector under this Act.\ncondition includes limitation and restriction.\nconstruct includes assemble, erect, reconstruct, reassemble and re-erect.\ncorresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law.\ncorresponding WHS law means:\nNote\nSee the jurisdictional note in the Appendix.\ncourt means:\nNote\nSee the jurisdictional note in the Appendix.\ndangerous incident, in Part 3—see section 37\ndemolition includes deconstruction.\ndesign, in relation to plant, a substance or a structure includes:\n(a) design of part of the plant, substance or structure; and\n(b) redesign or modify a design.\ndisclose, in relation to information, includes divulge or communicate to any person or publish.\ndiscriminatory conduct, in Part 6—see section 105.A18\nemployee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.\nemployer organisation means an organisation of employers.\nengage in conduct means doing an act or omitting to do an act.\nFair Work Act means the Fair Work Act 2009 of the Commonwealth.\nhandling includes transport.\nhealth means physical and psychological health.\nhealth and safety duty—see section 30.\nhealth and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member.\nimport means to bring into the jurisdiction from outside Australia.\ninspector means an inspector appointed under Part 9.\ninternal reviewer means:\n(a) the regulator; or\n(b) a person appointed by the regulator under section 225.\nlocal authority means:\nNote\nSee the jurisdictional note in the Appendix.\nmedical treatment means treatment by a medical practitioner registered under [the relevant registration Act].\nNote\nSee the jurisdictional note in the Appendix.\nnotifiable incident—see section 35.\nofficer means:\n(a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or\n(b) an officer of the Crown within the meaning of section 247; or\n(c) an officer of a public authority within the meaning of section 252,\nother than an elected member of a local authority acting in that capacity.\nofficial of a union, in Part 7—see section 116.\nperson conducting a business or undertaking—see section 5.\npersonal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.\nplant includes:\n(a) any machinery, equipment, appliance, container, implement and tool; and\n(b) any component of any of those things; and\n(c) anything fitted or connected to any of those things.\nprohibited reason, in Part 6—see section 106.\npublic authority means:\nNote\nSee the jurisdictional note in the Appendix.\nreasonably practicable, in relation to a duty to ensure health and safety—see section 18.\nregulator means:\nNote\nSee the jurisdictional note in the Appendix.\nrelevant person conducting a business or undertaking, in Part 7—see section 116.\nrelevant State or Territory industrial law, in Part 7—see section 116.\nrelevant union, in Part 7—see section 116.\nrelevant worker, in Part 7—see section 116\nrepresentative, in relation to a worker, means:\n(a) the health and safety representative for the worker; or\n(b) a union representing the worker; or\n(c) any other person the worker authorises to represent him or her.\nserious injury or illness, in Part 3—see section 36.\nState includes Territory.\nState or Territory industrial law has the same meaning as it has in the Fair Work Act.\nstructure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes:\n(a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and\n(b) any component of a structure; and\n(c) part of a structure.\nsubstance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.\nsupply—see section 6.\nthis Act includes the regulations.\nNote\nSee the jurisdictional note in the Appendix.\nunion means:\n(a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or\n(b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law.\nvolunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).\nWHS entry permit means a WHS entry permit issued under Part 7.\nWHS entry permit holder means a person who holds a WHS entry permit.\nWHS undertaking means an undertaking given under section 216(1).\nwork group means a work group determined under Part 5.\nworker—see section 7.\nworkplace—see section 8.","In accordance with the jurisdictional note, the Commonwealth WHS Act specified definitions for certain terms.\n\nThe Commonwealth WHS Act also included the following additional definitions: ASIS, Australia, Australian Border Force, Australian Border Force Commissioner, Australian Border Force worker, Comcare, Commonwealth, emergency services worker, Fair Work Commission, Immigration and Border Protection Secretary, legal practitioner, modifications, non-Commonwealth licensee. \n\nThe Commonwealth WHS Act varied the following definitions: corresponding regulator, State, WHS entry permit. The definiton of 'state' specifically refers to the Australian Capital Territory and the Northern Territory.\n",null,null,"In accordance with the jurisdictional note the NSW WHS Act has specified definitions for certain terms. \n\nThe NSW WHS Act has defined the following additional terms: member of staff of the regulator and SafeWork NSW.\n\nThe NSW WHS Act has also clarified that document includes record and added a note to the definition of inspector. The note to the definition of inspector states that the Act deems an inspector under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) to be an inspector under the Act. \n\nThe NSW WHS Act does not contain a definition of relevant State or Territory industrial law.\n\nSection 116 of the model WHS Act includes a definition of relevant State or Territory industrial law. In accordance with the jurisdictional note to that section, a State or Territory may insert its relevant industrial law. \n\nNSW has inserted the Industrial Relations Act 1996.\n",null,null,"The ACT WHS Act refers to a dictionary which appears at the end of the ACT WHS Act, to ensure consistency with other ACT legislation. \n\nThe ACT WHS Act defines the following additional terms in the dictionary:  cease work under this division, commissioner, compliance and enforcement policy, council, eligible person, eligible union, external review, health and safety committee, infringement notice, infringement notice offence, internal review, major construction project, notice, offender, parties, principal contractor, prohibition notice, reviewable decisions, WHS civil penalty provision, work health and safety commissioner  \n\nIn some cases these terms are also used in the model WHS Act, but are not expressly defined in s 4 of that Act. \n\nThe ACT WHS Act does not include the term 'authorising authority' as it uses the term 'regulator'. \n\nThe ACT WHS Act does not include the term 'local authority' as there is no local government authority in that jurisidction. The reference to 'an elected member of a local authority acting in that capacity' has also been removed from the definition of 'officer'.\n\nThe Statute Law Amendment Act 2012 (ACT) moved the definition of the term 'medical treatment' to s 36(2) of the ACT WHS Act, as the term is only used in that section. \n\nThe ACT WHS Act does not include a definition of 'relevant State or Territory industrial law'. This is because the Fair Work Act (Cth) is the only relevant industrial law covering the ACT. \n\n",null,null,"Section 4 of the Qld WHS Act states that the dictionary is in Schedule 5. \n\nSchedule 5 of the Qld WHS Act contains the definitions in s 4 of the model WHS Act with some variations.\n\nIn accordance with the jurisdictional notes, the Qld WHS Act has specified definitions for certain terms.\n\nThe Qld WHS Act has defined the following additional terms: affected person, affected persons committee, applicant, assessment report, causes, cease work under this division, commission, committee member, conduct, dispute, executive officer, external review body, improvement notice, industrial officer authority, industrial registrar,information, infringement notice, non-disturbance notice, offender, prohibition notice, repeal, repealed Act, senior officer, WHS civil penalty provision, WHS matter, WHS prosecutor, workplace incident.\n\nThe Qld WHS Act omits definitions of: authorising authority, local authority, relevant State or Territory industrial law, State, this Act.\n\nThe Qld WHS Act uses the term 'industrial registrar' instead of  'authorising authority'.  \n\nThe Qld WHS Act definition  of 'dangerous incident' has been varied. It refers to s 37 for Part 3 but also s 176.\n\nThe Qld WHS Act definition of 'serious injury or illness' has also been varied. It refers to s 36 for Part 3 but also s 176 and Schedule 2.\n\n'Union' is defined in the Qld WHS Act to also mean an employee organisation under the Industrial Relations Act 2016 (Qld).",null,null,"The SA WHS Act has noted that the definitions apply 'unless the contrary intention appears'.\n\nIn accordance with the jurisdictional note the SA WHS Act has specified definitions for certain terms. \n\nThe SA WHS Act also defines the following additional terms: Consultative Council, Department, emergency services worker, Executive Director, industrial registrar, Magistrates Court, review committee,  SAET, RTWSA.\n\nThe SA WHS Act omits a definition of 'court' as the Act separately defines Magistrates Court and the SAET.\n\nThe Act does not include a definition of 'relevant State or Territory industrial law', replacing it with express references to the Fair Work Act 1994 (SA).\n",null,null,"In accordance with the jurisdictional note the NT WHS Act has specified definitions for certain terms. \n\nThe NT WHS Act does not include the term 'authorising authority' as it uses the term 'regulator'. \n\nThe NT WHS Act includes a definition for Industrial Manslaugther. \n\nThe definiton of officer omits the words 'of the Commonwealth' after Corporations Act 2001 (Cth).\n\nThe definition of 'personal information' deletes the words 'of the Commonwealth' after Privacy Act 1988 (Cth).  \n\nThe Act does not include the term 'local authority' as it refers to 'local government' .\n\nAs with all other Acts except the Commonwealth, this Act does not include a definition of 'relevant State or Territory industrial law'. This is because the Fair Work Act 2009 (Cth) is the only relevant industrial law covering the NT.\n\n",null,null,"In accordance with the jurisdictional note the TAS WHS Act has specified definitions for certain terms. \n\nThe Tas WHS Act also defines the following additional term: document.\n\nThe Tas WHS Act does not include the term 'authorising authority' as it uses the term 'regulator'.                                                                                                                                                                                                                 \n\nThe Tas WHS Act does not include the term 'court'. \n\nThe Tas WHS Act includes the term 'medical treatment' but does not state that treatment is required from a medical practitioner registered under the jurisdictions relevant Act.\n                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   The Tas WHS Act does not include a definition of 'relevant State or Territory industrial law'. This is because there is only one relevant industrial law being the Industrial Relations Act 1984 (Tas). "]
[]
[]
[]
[]
[]
[]
[]
[]
["Subdivision 2 Other Important Items"]
["5 Meaning of person conducting a business or undertaking\n(1) For the purposes of this Act, a person conducts a business or undertaking:\n(a) whether the person conducts the business or undertaking alone or with others; and\n(b) whether or not the business or undertaking is conducted for profit or gain.\n(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.\n(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.\n(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.\n(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.\n(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.\n(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.\n(8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.",null,null,null,"The NSW WHS Act includes a note which states that a person may be both a person conducting a business or undertaking, within the meaning of this section, and a worker within the meaning of section 7",null,null,"Subsection 5(5) is not included as the ACT has no local government structure (the ACT Government performs the equivalent functions of a local government in the ACT). The remaining provisions have been renumbered.",null,null,null,null,null,null,null,null,"Subsection 5(5) replaces \"local authority\" with \"local government council\". This does not alter the effect of the model WHS provision. "]
["6 Meaning of supply\n(1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.\n(2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.\n(3) A supply of a thing does not include:\n(a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or\n(b) a prescribed supply.\n(4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if:\n(a) the financier has, in the course of the financier's business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and\n(b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.\n(5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier's customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier's customer."]
["7 Meaning of worker\n(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:\n(a) an employee; or\n(b) a contractor or subcontractor; or\n(c) an employee of a contractor or subcontractor; or\n(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or\n(e) an outworker; or\n(f) an apprentice or trainee; or\n(g) a student gaining work experience; or\n(h) a volunteer; or\n(i) a person of a prescribed class.\n(2) For the purposes of this Act, a police officer is:\n(a) a worker; and\n(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.\n(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.\nNote\nSee the jurisdictional notes in the Appendix.","In accordance with the jurisdictional note, the Commonwealth WHS Act varied the definition in s 7(2) for consistency with jurisdictional police laws.\n\nThe Commonwealth WHS Act inserted s 7(2A)-(2H) which extends the definition of ‘worker’ to include other persons who are currently deemed to be employees of the Commonwealth. This includes members of the ADF and persons who constitute a Commonwealth public authority. The Commonwealth WHS Act also has specific provisions concerning the application of the definition of worker to Australian Territories excluding the ACT, NT and Norfolk island.  The Minister is also able to declare certain classes of people to be workers. \n\n",null,null,"the NSW WHS Act includes a note which states that a person may be both a worker, within the meaning of this section, and a person conducting a business or undertaking within the meaning of section 5",null,null,"Subsection 7(1) includes a note that a power to make a regulation, includes power to make different provision for different classes (Legislation Act 2001, s 48).",null,null,null,null,null,"SA WHS Act removes the words 'but not otherwise' from \ns (7)(2)(b), but this does not appear to change the meaning of the provision. ",null,null,null,null,null,null,null,null,"SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47 : A person would be a “worker” under section 7 if they carry out work in any capacity for a PCBU. This includes work as contractor or sub-contractor (at [177]-[181]).\n"]
["8 Meaning of workplace\n(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.\n(2) In this section, place includes:\n(a) a vehicle, vessel, aircraft or other mobile structure; and\n(b) any waters and any installation on land, on the bed of any waters or floating on any waters."]
["9 Examples and notes\n(1) An example at the foot of a provision forms part of this Act.\n(2) A note at the foot of a provision forms part of this Act.\nNote\nSee the jurisdictional notes in the Appendix.",null,null,null,null,null,null,"Subsection 9(1) includes a note that the Legislation Act 2001 (ACT) deals with examples.\n\nIn accordance with the jursdictional note, the ACT WHS Act includes s 9(3), which provides that s 9(2) of the ACT WHS Act displaces section 127 of the Legislation Act 2001 (ACT) (which provides that notes do not form part of an Act). ",null,null,"The Qld WHS Act does not include this provision. However, a similar effect is achieved through s 14 of the Acts Interpretation Act 1954 (Qld) which sets out what material forms part of an Act."]
["Division 4 Application of Act "]
["10 Act binds the Crown\n(1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.\nNote\nSee the jurisdictional notes in the Appendix.\n(2) The Crown is liable for an offence against this Act.\n(3) Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision.","In accordance with the jursdictional note (and consistent with current drafting practices) references to the 'Crown' are replaced with 'Commonwealth'. ",null,null,null,null,null,"The ACT WHS Act replaces \"this jurisdiction\" with \"the Territory\" and replaces \"Parliament of this jurisdiction\" with \"Legislative Assembly\". These variations do not alter the effect of s 10 of the model WHS Act. ",null,null,"In accordance with the jurisdictional note, the Qld WHS Act has enacted a provision to ensure that the Crown in right of Queensland and all its other capacities is bound by the provisions of the Act. \n\nAs permitted by the jurisdictional note the Qld WHS Act replaces references to the \"the Crown\" with the \"State\" or the \"State, Commonwealth and the other States\". This does not alter the practical effect of the model WHS Act. "]
["11 Extraterritorial application\nNote See the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth has inserted a local provision relating to extraterritorial application. \n\nThe Commonwealth WHS Act states that it extends to every external territory.  The extraterritorial application of the Commonwealth WHS Act is subject to the limitations set out in s 12.",null,null,"In accordance with the jurisdictional note, NSW has not included this section. Section 11C of the Crimes Act 1900 (NSW) applies in NSW. ",null,null,"In accordance with the jurisdictional note the ACT has inserted a local provision relating to extraterritorial application. \nSection 11 of the ACT WHS Act refers to the Criminal Code 2002 (ACT), where part 2.7  sets out the geographical application of a territory law that creates an offence. ",null,null,"In accordance with the jurisdictional note Queensland has not included this section. ",null,null,"In accordance with the jurisdictional note SA has inserted a local provision relating to extraterritorial application. \n\nThe section provides that the Act operates to the full extent of the extraterritorial legislative power of the State and that the SA WHS Act applies in relation to work on a South Australian ship, whether or not that ship is in the coastal waters of SA.",null,null,"In accordance with the jurisdictional note NT has not included this section. However it includes a note which indicates the issue of extra-territorial application is dealt with in Pt 11AA Div 7 of the Criminal Code. \n\nThe Code extends the application of a law of the Northern Territory that creates an offence beyond the territorial limits of the NT (and Australia) if the required geographical nexus exists.",null,null,"In accordance with the jurisdictional note Tasmania has not included this section. "]
["12 Scope\nNote See the jurisdictional notes in the Appendix.","In accordance with the jurisdictional note the Commonwealth has inserted a local provision to establish the relationship between the Commonwealth WHS Act and other Acts in the jurisdiction. \nSection 12 provides that the legislation will apply to businesses and undertakings of the Commonwealth, public authorities and for a transitional period non-Commonwealth licensees. It also  describes the Act's concurrent application and the approach to double jeopardy.\n\nA corresponding state or territory workplace health and safety law will not be excluded where a worker, who is owed duties by the Commonwealth, is also owed duties under the applicable State and Territory workplace and health safety law, allowing parallel duties to be owed. Parallel duties may also be owed in relation to a workplace.\n\nSection 12 of the Commonwealth WHS Act contains specific provisions concerning double jeopardy \n\n\n",null,null,"In accordance with the jurisdictional note, NSW has not included this section. ",null,null,"In accordance with the jurisdictional note the ACT has inserted a local provision to establish the relationship between the ACT WHS Act and other Acts in the jurisdiction.\n \nSection 12 of the ACT WHS Act states that the duties under the ACT WHS Act in relation to hazardous chemicals are in addition to duties in relation to them under any other law in force in the ACT. \n\nIt also provides that a duty under another ACT WHS law that is inconsistent with the ACT WHS Act will have no effect, unless the duties can operate concurrently.\n\n                                        ",null,null,"In accordance with the jurisdictional note,  Queensland has inserted a local provision to establish the relationship between the Qld WHS Act and other Acts in the jurisdiction. The provision works in conjunction with Schedule 1 to the Qld WHS Act to provide for the application of the Act to 'matters dealt with under other legislation'. Schedule 1 to the Qld WHS Act differs from Schedule 1 to the model WHS Act. \n\nHowever, together with Schedule 1, the provision also applies the Qld WHS Act to dangerous goods and high risk plant even if the dangerous goods are not at a workplace or for use in carrying out work. This is beyond the scope of what is permitted by the jurisdictional note for this section.",null,null,"In accordance with the jurisdictional note SA  has inserted a local provision to establish the relationship between the SA WHS Act and other Acts in the jurisdiction. \n\nSection 12 provides that the SA WHS Act does not limit or derogate from any other provisions of any other Act, and that compliance with the SA WHS Act does not necessarily mean that a common law duty of care has been satisfied. ",null,null,"In accordance with the jurisdictional note the NT has inserted a local provision to establish the relationship between the NT WHS Act and other Acts in the jurisdiction. \n\nSection 12 states the Schedule 1 makes it clear that the storage and handling of dangerous goods and the operation or use of high risk plant affecting public safety is covered by the NT WHS Act even if the dangerous goods are not at a workplace or for use in carrying out work. ",null,null,"In accordance with the jurisdictional note Tasmania has inserted a local provision to establish the relationship between the Tas WHS Act and other Acts in the jurisdiction. \n\nSection 12 provides that the Tas WHS Act does not limit or derogate from any other provisions of any other Act."]
["s12AA",null,null,null,null,null,null,"Section 12AA provides that Schedule 1 provides for the application of the ACT WHS Act to dangerous goods and high risk plant. \n\nThe Work Health and Safety Legislation Amendment Act 2018 (Cth) inserted this provision. \n"]
["s12A","To avoid regulatory overlap, the Commonwealth WHS Act, under s 12A, does not apply to certain vessels, structures and facilities to which provisions in the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth) and Schedule 3 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) apply.\n",null,null,"In accordance with the additional jursdictional notes NSW has included this section to clarify that an offence attracts strict liability (unless otherwise stated). The effect is that the regulator in a prosecution does not have to prove the conduct of the accused.",null,null,"In accordance with the additional jursdictional notes the ACT has included this section to clarify that strict liability applies to offences, unless otherwise stated. \n\nThe effect is that, where strict liability applies, the prosecution need only prove that the physical conduct or result occurred, without having to prove the mental state of the accussed.",null,null,null,null,null,null,null,null,"Section 12A notes that Pt 11AA of the Criminal Code applies to an offence against the NT WHS Act. \nPart 11AA of the Criminal Code deals with the general principles of criminal responsibility, defences, burden of proof and concepts used in the creation of offences.\n"]
["s12B","Section 12B imposes a duty on a person to consult, cooperate and coordinate activities with another person who has a duty under a corresponding workplace health and safety law in relation to the same matter. This is a similar duty to s 46. However, s 46 only requires duty holders to consult with persons who hold the same duty under the same Act, and does not extend to include duty holders under a corresponding state or territory workplace health and safety law.",null,null,null,null,null,"In accordance with the jurisdictional note for s 12, s 12B states that, for all offences against the ACT WHS Act, chapter 2 of the Criminal Code shall apply. That chapter sets out general principles of criminal responsibility and defines certain terms, such as recklessness.\n\nThis provision is similar to s 12A of the NT WHS Act",null,null,null,null,null,null,null,null,"In accordance with the additional jursdictional notes the NT has included this section to clarify that an offence attracts strict liability (unless otherwise stated. The effect is that the regulator in a prosecution does not have to prove the conduct of the accused."]
["s12C","In accordance with the jursidctional note to s 12, s 12C allows for declarations to be made to modify the application of provisions of the Commonwealth WHS Act to ensure that the Commonwealth WHS Act is not prejudicial to Australia’s national security."]
["s12D","In accordance with the jursidctional note to s 12, s 12D allows for declarations to be made to modify the application of provisions of the Commonwealth WHS Act in order to ensure that the Commonwealth WHS Act is not prejudicial to Australia’s defence."]
["s12E","In accordance with the jursidctional note to s 12, s 12E deals with potential prejudice to sensitive police operations."]
["s12F","Section 12F deals with the interaction between the Commonwealth WHS Act and Commonwealth criminal law.\n\nIn accordance with the additional jurisdictional notes, section 12F(2) provides that strict liability applies to each physical element of each offence under the Commonwealth WHS Act, unless otherwise stated.\n"]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Introduction "]
["Subdivision Principles  that apply to duties"]
["13 Principles that apply to duties\nThis Subdivision sets out the principles that apply to all duties that persons have under this Act.\nNote\nThe principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation.",null,null,null,null,null,null,"There is a note under this provision in the ACT WHS Act which states that a reference to an Act includes a reference to any statutory instrument made or in force under that Act (Legislation Act 2001 (ACT), s 104)."]
["14 Duties not transferrable\nA duty cannot be transferred to another person."]
["15 Person may have more than 1 duty\n A person can have more than 1 duty by virtue of being in more than 1 class of duty holder. "]
["16 More than 1 person can have a duty\n(1) More than 1 person can concurrently have the same duty.\n(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.\n(3) If more than 1 person has a duty for the same matter, each person:\n(a) retains responsibility for the person's duty in relation to the matter; and\n(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.\n",null,null,null,null,null,null,"There is a note under this provision in the ACT WHS Act which states that a reference to an Act includes a reference to any statutory instrument made or in force under that Act (Legislation Act 2001 (ACT), s 104).",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Benton v Historic Houses Trust of NSW [2017] NSWDC 324: Every duty holder must take reasonable care in the circumstances (at [223]).\n\nSafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47: The fact there are other persons who may, or may not, have been guilty of a breach of the duty imposed upon them is irrelevant because of the terms of s 16 (at [213]).\n"]
["17 Management of risks\nA duty imposed on a person to ensure health and safety requires the person:\n(a) to eliminate risks to health and safety, so far as is reasonably practicable; and\n(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.",null,null,null,null,null,null,null,null,null,null,null,null,"Includes an additional s 17(2) , which specifies that a person is only required to comply with s 17(1) to the extent that the person has capacity to influence or control the matter, or would have but for an agreement purporting to remove or limit that capacity. \n\nThe addition of s 17(2) is unlikely to result in s 17 having a different operation to the model WHS Act. The Safe Work Australia guidance material, How to Determine What is Reasonably Practicable to Meet a Health and Safety Duty, confirms that consideration of what is ‘reasonably practicable’ under the model WHS Act is intended to include (but is not limited to) the extent to which the duty holder is able to exercise influence and control over a matter."]
["Subdivision 2 What is reasonably practicable "]
["18 What is reasonably practicable in ensuring health and safety\nIn this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:\n(a) the likelihood of the hazard or the risk concerned occurring; and\n(b) the degree of harm that might result from the hazard or the risk; and\n(c) what the person concerned knows, or ought reasonably to know, about:\n(i) the hazard or the risk; and\n(ii) ways of eliminating or minimising the risk; and\n(d) the availability and suitability of ways to eliminate or minimise the risk; and\n(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117: The state of knowledge applied to the definition of 'practicable' is objective. It is that knowledge possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances\" (at [33]).\n\nSlivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304: The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage (at [37]).\n\nSafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47: The s 19 duty requires knowledge of the risk emanating from the activities of the defendant (Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6). Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable (at [22]).\n\nBaiada Poultry Pty Ltd v R (2012) 246 CLR 92:  The High Court held that an employer's duty to ensure health and safety \"so far as reasonably practicable\" does not mean that the employer has to take every possible step that could have been taken. Practically, this means it is not enough for the prosecution to merely assert that a step could or should have been taken to improve safety outcomes.  The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment (at [15] and [38]).\n\nSafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47:  What is reasonably practicable requires a proactive approach.  A duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder’s position, who is committed to and proactive about providing the highest level of protection to health and safety (at [24]-[25]). See also Holmes v Spence (1992) 5 VIR 119 at 123.\n\nSlivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 at [322]:Reasonable practicability does not contemplate or require infallibility, it is to be judged on the basis of what was known at the relevant time and must balance the likelihood of the risk occurring against the cost, the and trouble necessary to avert the risk (at [18]). See also Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96."]
["Division 2 Primary duty of care"]
["19 Primary duty of care\n(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:\n(a) workers engaged, or caused to be engaged by the person; and\n(b) workers whose activities in carrying out work are influenced or directed by the person,\nwhile the workers are at work in the business or undertaking.\n(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.\n(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:\n(a) the provision and maintenance of a work environment without risks to health and safety; and\n(b) the provision and maintenance of safe plant and structures; and\n(c) the provision and maintenance of safe systems of work; and\n(d) the safe use, handling and storage of plant, structures and substances; and \n(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and\n(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and\n(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.\n(4) If:\n(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and\n(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available,\nthe person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.\n(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.\nNote\nA self-employed person is also a person conducting a business or undertaking for the purposes of this section.",null,null,null,null,null,null,"Paragraph 19(3)(d) includes a reference to the safe transport of plant, structures and substances. The inclusion of transport makes it explicity clear that the PCBU has a duty of care in relation to the transportation of a plant, substance or structure. \n \nAs s 19(3) of the model WHS Act is not exhaustive, it is unlikely that the inclusion of 'transport' in the ACT WHS Act has resulted in the ACT WHS Act having a wider scope than the model WHS Act.  ",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Boland v Safe is Safe Pty Ltd & Munro [2017] SAIRC 17: The plain text of s 19(2) does not limit the duty to ensure the health and safety of other persons to a particular time or place.  The duty is owed to customers and visitors to a workplace while work is being carried out as well as the public at large to protect them from the adverse health and safety consequences as a result of work undertaken by a PCBU (at [24] to [34]). \n\nSafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47 : The District Court discussed the meaning behind the word \"and\" in regards to paragraphs (a) and (b) in s 19(1), stating that to regard these paragraphs as truly cumulative would limit the categories of workers who would obtain protection (at [188]). The Court also found that the word \"engaged\" in s 19(1)(a) is to be understood as a broader concept than employment, which encompassed the sub-sub-contractor (at [205]). \n\nSafe Work NSW v Wagga Motors Pty Ltd [2018] NSWDC 242 : The duty to other persons under s 19(2) is not geographically limited to the workplace. The class of persons to whom the duty is owed will be determined by their proximity to a risk created by the work carried out as part of the business or undertaking. The court noted that while it seems onerous, it is not beyond the objects of the NSW Act (s 3) to require a PCBU to take reasonably practicable steps to protect against risk to other persons not at the workplace (for example, risks created by the inadequate repair of vehicles or unsafe transport of materials) (at [66]). \n\nSafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237 The Court found ‘other persons’ in s 19(2) does not apply to workers, only to persons other than workers. Workers are covered by the duty in s 19(1).\n\n"]
[]
["Division 3 Further duties of persons conducting a business or undertaking"]
["20 Duty of persons conducting businesses or undertakings involving management or control of workplaces\n(1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include:\n(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or\n(b) a prescribed person.\n(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person."]
["21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces\n(1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include:\n(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or\n(b) a prescribed person.\n(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person."]
["22 Duties of persons conducting businesses or undertakings that design plant, substances or structures\n(1) This section applies to a person (the designer) who conducts a business or undertaking that designs:\n(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or\n(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or\n(c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.\n(2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons:\n(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or\n(b) who handle the substance at a workplace; or\n(c) who store the plant or substance at a workplace; or\n(d) who construct the structure at a workplace; or\n(e) who carry out any reasonably foreseeable activity at a workplace in relation to:\n(i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or\n(ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or\n(iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or\nExample\nInspection, operation, cleaning, maintenance or repair of plant.\n(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).\n(3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).\n(4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning:\n(a) each purpose for which the plant, substance or structure was designed; and\n(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and\n(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) to (e).\n(5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).",null,null,null,null,null,null,"The ACT WHS Act moves the example from underneath s 22(2)(e) to the end of subsection (2), but does not otherwise alter the text. "]
[]
["23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures\n(1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures:\n(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or\n(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or\n(c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.\n(2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons:\n(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or\n(b) who handle the substance at a workplace; or\n(c) who store the plant or substance at a workplace; or\n(d) who construct the structure at a workplace; or\n(e) who carry out any reasonably foreseeable activity at a workplace in relation to:\n(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or\n(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or\n(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or\nExample\nInspection, operation, cleaning, maintenance or repair of plant.\n(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).\n(3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).\n(4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning:\n(a) each purpose for which the plant, substance or structure was designed or manufactured; and\n(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and\n(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).\n(5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).",null,null,null,null,null,null,"The ACT WHS Act moves the example from underneath s 23(2)(e) to the end of subsection (2), but does not otherwise alter the text."]
[]
["24 Duties of persons conducting businesses or undertakings that import plant, substances or structures\n(1) This section applies to a person (the importer) who conducts a business or undertaking that imports:\n(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or\n(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or\n(c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.\n(2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons:\n(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or\n(b) who handle the substance at a workplace; or\n(c) who store the plant or substance at a workplace; or\n(d) who construct the structure at a workplace; or\n(e) who carry out any reasonably foreseeable activity at a workplace in relation to:\n(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or\n(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or\n(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or\nExample\nInspection, operation, cleaning, maintenance or repair of plant.\n(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).\n(3) The importer must:\n(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or\n(b) ensure that the calculations, analysis, testing or examination have been carried out.\n(4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning:\n(a) each purpose for which the plant, substance or structure was designed or manufactured; and\n(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and \n(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).\n(5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).",null,null,null,null,null,null,"The ACT WHS Act moves the example from underneath s 24(2)(e) to the end of subsection (2), but does not otherwise alter the text. "]
[]
["25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures\n(1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies:\n(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or\n(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or\n(c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.\n(2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons:\n(a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or\n(b) who handle the substance at a workplace; or\n(c) who store the plant or substance at a workplace; or\n(d) who construct the structure at a workplace; or\n(e) who carry out any reasonably foreseeable activity at a workplace in relation to:\n(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or\n(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or\n(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or\nExample\nInspection, storage, operation, cleaning, maintenance or repair of plant.\n(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).\n(3) The supplier must:\n(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or\n(b) ensure that the calculations, analysis, testing or examination have been carried out.\n(4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning:\n(a) each purpose for which the plant, substance or structure was designed or manufactured; and\n(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and\n(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e).\n(5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e).",null,null,null,null,null,null,"The ACT WHS Act moves the example from underneath s 25(2)(e) to the end of subsection (2), but does not otherwise alter the text. "]
[]
["26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures\n(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.\n(2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons:\n(a) who install or construct the plant or structure at a workplace; or\n(b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or\n(c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or\n(d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c)."]
["s 26A",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserted s 26A which has the effect that where the Minister has approved a code of practice the PCBU must either comply with the code or otherwise provide a standard of health and safety that is equivalent to or higher than the standard required under the code."]
["Division 4 Duty of officers, workers and other persons"]
["27 Duty of officers\n(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.\n(2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.\n(3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.\n(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.\n(5) In this section, due diligence includes taking reasonable steps:\n(a) to acquire and keep up-to-date knowledge of work health and safety matters; and\n(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and\n(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and\n(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and\n(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and\nExamples\nFor the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:\n- reporting notifiable incidents;\n- consulting with workers;\n- ensuring compliance with notices issued under this Act;\n- ensuring the provision of training and instruction to workers about work health and safety;\n- ensuring that health and safety representatives receive their entitlements to training.\n(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).",null,null,null,null,null,null,"There are three notes provided under subsection (1). The first two notes provide signposts for the definitions of 'officer' and 'person'. The third note states that a reference to an Act includes a reference to any statutory instrument made or in force under that Act (Legislation Act 2001 (ACT), s 104).\n\nReferences to parts of the ACT WHS Act are reworded in line with the drafting conventions used in that jurisdiction. \n\nThe ACT WHS Act moves the examples from underneath s 27(5)(e) to the end of the section. ",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465: The definition of an officer may include directors, company secretaries, external administrators, senior management and persons who may not make a decision of an officer but ‘participate’ in the making of a decision.\n\nB McKie v Muni Al-Hasani, Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1: The Court held that whether a person, who is not a director or company secretary, could be an officer depended on assessing their role in the company as a whole rather than a particular function or project in which the individual was engaged. A person's ability to make decisions, exercise control and authorise the substantial use of capital expenditure is relevant to an assessment of whether the person is an officer (rather than whether the person acts in that way in practice). The decision is consistent with the authorities under the Corporations Act.\n"]
[]
["28 Duties of workers\nWhile at work, a worker must:\n(a) take reasonable care for his or her own health and safety; and\n(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and\n(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and\n(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.",null,null,null,null,null,null,"There is a note under this provision of the ACT WHS Act, which states that a reference to an act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104)."]
["29 Duties of other persons at the workplace\nA person at a workplace (whether or not the person has another duty under this Part) must:\n(a) take reasonable care for his or her own health and safety; and\n(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and\n(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.",null,null,null,null,null,null,"There is a note under this provision of the ACT WHS Act, which states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104)."]
["Division 5 Offences and penalties"]
["30 Health and safety duty\nIn this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part.",null,null,null,"the NSW WHS Act has added a note which states that in certain circumstances, the death of a person may also constitute manslaughter under the Crimes Act 1990 and may be prosecuted under that Act. ",null,null,"References to parts of the ACT WHS Act are reworded in line with the drafting conventions used in that jurisdiction. \n\n"]
["31 Reckless conduct—Category 1\n(1) A person commits a Category 1 offence if:\n(a) the person has a health and safety duty; and\n(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and\n(c) the person is reckless as to the risk to an individual of death or serious injury or illness.\nMaximum penalty:\nIn the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300 000 or 5 years imprisonment or both.\nIn the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600 000 or 5 years imprisonment or both.\nIn the case of an offence committed by a body corporate—$3 000 000.\n(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.","In accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW WHS Act includes a fault element of gross negligence as an alternative to the fault element of recklessness. This was introduced in the Work Health and Safety Amendment (Review) Act 2020. This amendment implements a recommendation of the 2018 review of the model WHS laws. An equivalent amendment has not yet been made to the model WHS Act.\n\nIn accordance with the addititional jurisdictional notes , the NSW WHS Act replaces the reference to $300,000 to 3,465 penalty units, $600,000 to 6925 penalty units and $3,000,000 to 34,630 penalty units",null,null,"The Statue Revision Law Amendment Act 2012 (ACT) amended s 31(2) to replace 'bears' with 'has' to ensure consistency with the Criminal Code. This amendment is unlikely to alter the effect of the model WHS Act provision.\n\nA note informs the reader that strict liability applies to the element in subsection (1)(a), being that the person has a health and safety duty (see s 12A).\n\nThe Courts (Fair Work and Work Safety) Legislation Amendment Act 2019 (ACT) added an additional subsection (3) which provides that a category 1 offence is an indictable offence. Under ACT law an indictable offence is one punishable by two years imprisonment, or is declared by an ACT law. The amendment ensures that corporations, which cannot be subject to imprisonement, can still be tried on indictment in the ACT Supreme Court. ",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty is 3000 units for an individual or 5 years imprisonment. For an individual who is conducting a business or undertaking or is an officer, the maximum penalty is 6000 penalty units or 5 years imprisonment and 30,000 maximum penalty units for a body corporate. \n\nA note at the end of s 31(1) states that  the penalty applicable to a body corporate is separately expressed in Division 5.  Otherwise s 181B of the Penalties and Sentences Act 1992 (Qld) will apply. Section 181B provides that:\n       - where a provision does not expressly prescribe a maximum fine for a body corporate different from the maximum fine for an individual,\n       - then the maximum fine for a body corporate is an amount equal to five times the maximum fine for an individual. \n (See also section 255 which also applies a penalty to a body corporate). \n\nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.\n\nA subsection (3) further provides that \"A category 1 offence is a crime\".",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. ",null,null,"Campbell v Rowe [2019] SAET 104: This case saw a worker (Rowe) sentenced to the first successful Category 1 offence in SA under s 31 of the SA Work Health and Safety Act 2012 (SA). Rowe pleaded guilty to breaching his duty as a worker under s 28(b) of the Act to take reasonable care that their acts or omissions did not adversely affect the safety of others. This is an interesting decision as the conviction was based purely on conduct giving rise to a risk of harm, without any actual harm being alleged.  See D19-8992 for full case note.\n\nOrr v Cudal Lime Products Pty Ltd [2018] NSWDC 27:  The NSW District Court, in respect of the concept of recklessness found that directing an unqualified person to install a switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute \"recklessness\" (citing Aubrey v R [2017] HCA 18 at [49]): Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27 at [136]. The Court also found the recklessness was aggravated by a history of electrical issues identified as safety risks by the relevant safety officers, which were not properly rectified (at [137]). \n\nSee also attachment A of legal minute 'Two key differences between 'recklessness' and 'gross negligence' at D19-7434."]
["32 Failure to comply with health and safety duty—Category 2\nA person commits a Category 2 offence if:\n(a) the person has a health and safety duty; and\n(b) the person fails to comply with that duty; and\n(c) the failure exposes an individual to a risk of death or serious injury or illness.\nMaximum penalty:\nIn the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000.\nIn the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000.\nIn the case of an offence committed by a body corporate—$1 500 000.","In accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the addititional jurisdictional notes, the NSW WHS Act replaces the reference to $150,000 to 1730 penalty units, $300,000 to 3465 penalty units and $1,500.000 to 17,315 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance  with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The maximum penalty is 1500 units for an individual, for an individual who is conducting a business or undertaking or is an officer the maximum penalty is 3000 penalty units and 15,000 maximum penalty units for a body corporate. \nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. ",null,null,"SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47:  The Court noted that the word \"risk\" pursuant to s 32(c) is not defined in the Act. The Court further considered that \"risk\" should not be interpreted in a complicated fashion. Further, the Court considered that a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error (at [20]-[21]).\n\nNash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96  The Court held that although the substantial injury caused to the worker was the materialisation of the risk, it was the risk which was an essential element of the offence under section 32 and not its materialisation at [43]."]
["33 Failure to comply with health and safety duty—Category 3\nA person commits a Category 3 offence if:\n(a) the person has a health and safety duty; and\n(b) the person fails to comply with that duty.\nMaximum penalty:\nIn the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000.\nIn the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000.\nIn the case of an offence committed by a body corporate—$500 000.","In accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the addititional jurisdictional notes, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units, $100,000 with 1155 penalty units and $500,000 with 5770 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"IIn accordance  with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The maximum penalty is 500 units for an individual, for an individual who is conducting a business or undertaking or is an officer the maximum penalty is 1000  penalty units and 5000 maximum penalty units for a body corporate. \nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["s33A",null,null,null,null,null,null,null,null,null,"In accordance with the jurisdictional note, Queensland has inserted a local provision to establish the relationship between the Qld WHS Act and other Acts in the jurisdiction. The provision works in conjunction with schedule 1 to the Qld WHS Act to provide for the application of the Act to 'matters dealt with under other legislation'. Schedule 1 to the Qld WHS Act differs from Schedule 1 to the model WHS Act. \n\nHowever, together with Schedule 1, the provision also applies the Qld WHS Act to dangerous goods and high risk plant  even if the dangerous goods are not at a workplace or for use in carrying out work. This is beyond the scope of what is permitted by the jurisdictional note for this section.\n\nSection 33A provides that the duties set out in ss 32 and 33 prevail over the excuses provided by ss 23 (intention - motive) and 24 (mistake of fact) provided by the Criminal Code Act 1899 (Qld). The effect is that breaches of the duties set out in Divisions 1-4 of Part 2 will be governed by the terms of the relevant sections of the Qld WHS Act and not by the Criminal Code in the areas such as intention, foreseeability or mistake of fact."]
["34 Exceptions\n(1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.\n(2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.\n(3) However:\n(a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and \n(b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.",null,null,null,null,null,null,"References to parts of the ACT WHS Act are reworded in line with the drafting conventions used in that jurisdiction.\n\nThere is a note under this provision of the ACT WHS Act which states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,null,null,null,"Includes additional provisions that exclude volunteer officers of prescibed strata/community titles corporation from committing an offence  under s 27 - but are still be liable under other duties in the SA WHS Act. 'Prescribed strata/community titles corporation' is defined by s 34(5)."]
["34A - Exception for police responding to particular active armed offender  incidents (New South Wales)\n(1) A member of the NSW Police Force does not commit an offence under this Division for a failure to comply with a health and safety duty that occurs while-- \n(a) the member is responding to a particular active armed offender incident, or \n(b) the member is in command of, or is otherwise authorising actions by or providing directions to, other members of the NSW Police Force who are responding to a particular active armed offender incident, or \n(c) the member is receiving information from, or providing information to, other members of the NSW Police Force for the purposes of assisting them in responding to a particular active armed offender incident, or \n(d) the member is participating with other members of the NSW Police Force in preparing or planning for responding to a particular active armed offender incident. \n(2) A member of the NSW Police Force is \n\"responding to a particular active armed offender incident\" if-- \n(a) a person armed with an offensive weapon or instrument (the \n\"offender\" ) is attacking or has attacked, or is attempting to attack or has attempted to attack, another person (the \n\"victim\" ), and \n(b) the member reasonably believes (or one or more other members of the NSW Police Force who are commanding, authorising actions by or directing the member reasonably believe) that the offender will do any of the following unless prevented from doing so-- \n(i) continue attacking, or attempting to attack, the victim, \n(ii) attack, or attempt to attack, the victim again, \n(iii) attack, or attempt to attack, another person apart from the victim, and \n(c) the member is acting (whether or not in combination with, or at the command or direction of, other members of the NSW Police Force) to prevent the offender from doing so. \n(3) To avoid doubt, this section does not affect the duties of the State or the Crown under this Part in connection with responding to a particular active armed offender incident. \n(4) In this section-- \n\n\n\"offensive weapon or instrument\" has the same meaning as in the Crimes Act 1900 . ",null,null,null,"The NSW WHS Act adds s 34A which provides that in certain circumstances, a member of the NSW Police force does not commit an offence under this Division for failure to comply with a health and safety duty. "]
["34A \tMeaning of alternative offence (Northern Territory)\nIn this Division:\nalternative offence means an offence against section 31 or 32.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section contains a defintion of alternative offence for the purpose of ss 31 or 32 of the NT WHS Act. "]
["34B Industrial manslaughter\n(1) A person commits the offence of industrial manslaughter if:\n(a) the person has a health and safety duty; and\n(b) the person is a person conducting a business or undertaking or an officer of a person conducting a business or undertaking; and\n(c) the person intentionally engages in conduct; and\n(d) the conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed; and\n(e) the person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of that individual.\nMaximum penalty:\n(a) for an individual – imprisonment for life; or\n(b) for a body corporate – 65 000 penalty units.\n(2) Strict liability applies to subsection (1)(a) and (b).\n(3) A volunteer does not commit industrial manslaughter for a failure to comply with a health and safety duty, unless the duty is under section 28 or 29.\nNote for subsection (3)\nThe defendant has an evidential burden in relation to the matters in subsection (3) (see section 43BU of the Criminal Code).\n(4) For this section, a person's conduct causes death if it substantially contributes to the death.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section prescribes the offence of industrial manslaughter as it applies in the Northern Territory. Under s 34B, a person commits the offence of industrial manslaughter if:\n•\tthe person has a health and safety duty\n•\tthe person is a person conducting a business or undertaking or an officer of a person conducting a business or undertaking\n•\tthe person intentionally engages in conduct\n•\tthe conduct breaches the health and safety duty and causes the death of an individual to whom the health and safety duty is owed\n•\tthe person is reckless or negligent about the conduct breaching the health and safety duty and causing the death of an individual.  \nThis section specifies the maximum penalty for the offence of industrial manslaughter and that strict liability applies to the offence. \nThis section also addresses how the offence applies to volunteers. A volunteer does not commit an industrial manslaughter offence for failing to comply with a health and safety duty unless the duty is the duty under ss 28 or 29. "]
["34C Provisions not applicable to industrial manslaughter\nThe following provisions do not apply in relation to industrial manslaughter:\n(a) section 12B;\n(b) Part 11;\n(c)  section 239.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section provides that s 12B, Part 11 and s 239 do not apply to the offence of industrial manslaughter. "]
["34D Verdict for alternative offence\n(1) In a proceeding against a person charged with industrial manslaughter, the trier of fact may find the person guilty of an alternative offence if the trier of fact:\n(a) is not satisfied beyond reasonable doubt that the person is guilty of industrial manslaughter; and\n(b) is satisfied beyond reasonable doubt that the person committed the alternative offence.\n(2) To avoid doubt, section 316 of the Criminal Code does not apply in respect of industrial manslaughter.\n\n",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Section 34D provides for a system of alternative offences. It provides that if a person is charged with industrial manslaughter, they may be found guilty of an alternative offence by the trier of fact in certain circumstances "]
["34E\t Limitation period for prosecution\n(1) Despite section 232, the limitation periods in that section do not apply in respect of industrial manslaughter.\n(2) To avoid doubt, the limitation periods in section 232 do prevent a guilty verdict for an alternative offence if the proceeding for industrial manslaughter was not commenced within the applicable limitation period in that section.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section provides that the limitation period in s 232 does not apply to the offence of industrial manslaugther. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Consultation co-operation and co-ordination "]
["\nN/A"," ",null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserted Part 2A which creates an offence of manslaughter by a PCBU and senior officer of a PCBU, with higher penalties.  The amendment reflects recommendation 46 of the Best Practice Review of Workplace Health and Safety Queensland - Final Report.\n\nSection 34A provides definitions for the following terms used in this part: conduct, executive officer and senior officer. Section 34A(2) clarifies that a person’s conduct causes death if it substantially contributes to the death.\n\nThe section also provides that a a reference to a worker carrying out work for a business or undertaking includes a reference to a worker who is at a workplace to carry out work for the business or undertaking, including during a work break (emphasis added). The effect of this provision is that a PCBU will face an offence for circumstances where the worker who died was not carrying out work for the  PCBU. This is different to the scope of s 19(1) which imposes a duty on a PCBU in relation to workers while they are at work in the business or undertaking. "]
["34B",null,null,null,null,null,null,null,null,null,"Section 34B establishes an exception to provide that a volunteer does not commit an offence under this Part. However, this section clarifies that despite s 34(2) of the Act, a senior officer of an unincorporated association, other than a volunteer, may commit an offence under this Part."]
["34C",null,null,null,null,null,null,null,null,null,"Section 34C creates a new offence for industrial manslaughter by a person conducting a business or undertaking (PCBU). The new offence provides that the PCBU commits an offence if:\n• a worker dies in the course of carrying work for the business or undertaking, or is injured and later dies\n• the person’s conduct causes the death of the worker,\n• the person is negligent about causing the death of the worker, or another worker by the conduct.\n\nThe standard of 'negligent' for industrial manslaughter can be compared to the standard 'reckless' conduct for a Category offence under the model WHS Act. \n\nThe maximum penalty for the new offence is 20 years imprisonment for an individual or 100,000 penalty units ($10,000,000) for a body corporate. An offence against new s 34C(1) is a crime.\n\nA a reference to a worker carrying out work for a PCBU includes a reference to a worker who is at a workplace to carry out work for the PCBU including during a work break.  \n\n"]
["34D",null,null,null,null,null,null,null,null,null,"This section creates a new offence for industrial manslaughter by a senior officer of a PCBU. The elements of this offence are the same as the new offence for industrial manslaughter by a PCBU. The maximum penalty is 20 years imprisonment. An offence against new s 34D(1) is a crime.\n"]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
[]
["35 What is a notifiable incident\nIn this Act, notifiable incident means:\n(a) the death of a person; or\n(b) a serious injury or illness of a person; or\n(c) a dangerous incident."]
["36 What is a serious injury or illness\nIn this Part, serious injury or illness of a person means an injury or illness requiring the person to have:\n(a) immediate treatment as an in-patient in a hospital; or\n(b) immediate treatment for:\n(i) the amputation of any part of his or her body; or\n(ii) a serious head injury; or\n(iii) a serious eye injury; or\n(iv) a serious burn; or\n(v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or\n(vi) a spinal injury; or\n(vii) the loss of a bodily function; or\n(viii) serious lacerations; or\n(c) medical treatment within 48 hours of exposure to a substance,\nand includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.",null,null,null,null,null,null,"The Statute Law Amendment Act 2012 (ACT) amended s 36 to relocate the definition of 'medical treatment' from the dictionary, as the term is only used here.\n\nThe ACT WHS Act does not specify the relevant Act which will be the Health Practitioner Regulation National Law in that jurisdiction, as required by the 'medical treatment' jurisdictional note. \n\nThe ACT WHS Act includes a note that states that the power to make a regulation includes power to make different provision for different classes (Legislation Act 2001 (ACT), s 48).\n",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Tasmania v Gladwin [2016] SC 64 at [35]: The legislature intended the term “serious bodily harm” to mean that the minimum degree of seriousness required to activate the section would fall somewhere between mere bodily harm and grievous bodily harm ... The causation of mere bodily harm will not be sufficient to activate the application of the section, but neither must the harm amount to grievous bodily harm. In determining whether or not the harm suffered is serious bodily harm, the sentencing court must be satisfied of that fact beyond reasonable doubt before the section will have application. "]
[]
["37 What is a dangerous incident\nIn this Part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to:\n(a) an uncontrolled escape, spillage or leakage of a substance; or\n(b) an uncontrolled implosion, explosion or fire; or\n(c) an uncontrolled escape of gas or steam; or\n(d) an uncontrolled escape of a pressurised substance; or\n(e) electric shock; or\n(f) the fall or release from a height of any plant, substance or thing; or\n(g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or\n(h) the collapse or partial collapse of a structure; or\n(i) the collapse or failure of an excavation or of any shoring supporting an excavation; or\n(j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or\n(k) the interruption of the main system of ventilation in an underground excavation or tunnel; or\n(l) any other event prescribed by the regulations,\nbut does not include an incident of a prescribed kind.",null,null,null,null,null,null,"The ACT WHS Act includes a note that states that the power to make a regulation includes power to make different provision for different classes (Legislation Act 2001 (ACT), s 48).\n"]
["38 Duty to notify of notifiable incidents\n(1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) The notice must be given in accordance with this section and by the fastest possible means.\nNote\nSee the jurisdictional note in the Appendix.\n(3) The notice must be given:\n(a) by telephone; or\n(b) in writing.\nExample\nThe written notice can be given by facsimile, email or other electronic means.\n(4) A person giving notice by telephone must:\n(a) give the details of the incident requested by the regulator; and\n(b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made.\n(5) A written notice must be in a form, or contain the details, approved by the regulator.\n(6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking:\n(a) details of the information received; or\n(b) an acknowledgement of receiving the notice.\n(7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW WHS Act includes an additional subsection at s 38(8) providing that a person is not required to give notice under s 38 if an incident occurs at a workplace to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) applies. \n\nThe Work Health and Safety Amendment Act 2018 (NSW) deleted the reference to facsimile as an example of 'in writing' under s 38(3)(b) in line with recommendation 2 of the Work Health and Safety Act 2011 Statutory Review Report - June 2017.\n\nIn accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. \n\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"A note to ss 38(1) and 38(7) states that strict liability applies to each offence (s 12A).\n\nThe note to s 38(3) omits the reference to \"other electronic means\" and refers instead to Part 19.5 of the Legislation Act 2001 (ACT), which sets out provisions for the service of documents. Under this Part notice can be served by email or fax. There is no provision that allows for service by other electronic means. \n\nThe ACT WHS Act has added a note under s 38(5) to state the effect of s 277 -  if a form is approved under that section for a written notice, that form must be used. Practically this means that it is the Minister, rather than the regulator, who will determine the relevant form to be used. \n\nThe ACT WHS Act has added an additional s 38(8) which provides that, despite anything in this section, a notifiable incident reported in accordance with the requirements in the Dangerous Substances Act 2004 (ACT) is taken to be adequate notice for the purposes of the ACT WHS Act. \n",null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty  for contravention of s 38(1) is 100  units and for contravention of s 38(7) is maximum 50 penalty units. No distinction is made between individuals and body corporates. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[]
["39 Duty to preserve incident sites\n(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.\n(3) Subsection (1) does not prevent any action:\n(a) to assist an injured person; or\n(b) to remove a deceased person; or\n(c) that is essential to make the site safe or to minimise the risk of a further notifiable incident; or \n(d) that is associated with a police investigation; or\n(e) for which an inspector or the regulator has given permission.","In accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.\n\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty is 100 units. No distinction is made between individuals and body corporates. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
[]
["40 Meaning of authorised\nIn this Part, authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations."]
["41 Requirements for authorisation of workplaces\nA person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if:\n(a) the regulations require the workplace or workplaces in that class of workplace to be authorised; and\n(b) the workplace is not authorised in accordance with the regulations.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The maximum penalty is 500 units. The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act. (Qld)\n\nSection 36 of the Acts Interpretation Act 1954 (Qld)and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["42 Requirements for authorisation of plant or substance\n(1) A person must not use plant or a substance at a workplace if:\n(a) the regulations require the plant or substance or its design to be authorised; and\n(b) the plant or substance or its design is not authorised in accordance with the regulations.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000 \n(2) A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if:\n(a) the regulations require the plant or substance or its design to be authorised; and\n(b) the plant or substance or its design is not authorised in accordance with the regulations.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note under subsections (1) and (2) to clarify that strict liability applies to each element of each offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty is 200 units for contravention of s 42(1) and 200 penalty units for s 42(2). The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["43 Requirements for authorisation of work\n(1) A person must not carry out work at a workplace if:\n(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and\n(b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.\n(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if:\n(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and \n(b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty is 200 units for contravention of s 43(1) and 200 penalty units for s 43(2). The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["44 Requirements for prescribed qualifications or experience\n(1) A person must not carry out work at a workplace if:\n(a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and\n(b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.\n(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if:\n(a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and\n(b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty is 200 units. The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["45 Requirement to comply with conditions of authorisation\nA person must comply with the conditions of any authorisation given to that person under the regulations.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The maximum penalty is 200 units. The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Consultation co-operation and co-ordination "]
["46 Duty to consult with other duty holders\nIf more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104).\n\nIn accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The penalty is 200 units. The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["Division 2 Consultation with workers"]
["47 Duty to consult workers\n(1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.\nMaximum penalty:\nIn the case of an individual—$20 000.\nIn the case of a body corporate—$100 000.\n(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.\n(3) The agreed procedures must not be inconsistent with section 48.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $20,000 with 230 penalty units and $100,000 with 1,155 penalty units. ",null,null,"In accordance with the additional jurisdictional notes the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The penalty is 200 units. The section makes no distinction is made between individuals and body corporates which is a variance from the model WHS Act. \n\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["48 Nature of consultation\n(1) Consultation under this Division requires:\n(a) that relevant information about the matter is shared with workers; and\n(b) that workers be given a reasonable opportunity:\n(i) to express their views and to raise work health or safety issues in relation to the matter; and\n(ii) to contribute to the decision-making process relating to the matter; and\n(c) that the views of workers are taken into account by the person conducting the business or undertaking; and\n(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.\n(2) If the workers are represented by a health and safety representative, the consultation must involve that representative."]
["49 When consultation is required\nConsultation under this Division is required in relation to the following health and safety matters:\n(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;\n(b) when making decisions about ways to eliminate or minimise those risks;\n(c) when making decisions about the adequacy of facilities for the welfare of workers;\n(d) when proposing changes that may affect the health or safety of workers;\n(e) when making decisions about the procedures for:\n        (i) consulting with workers; or\n       (ii) resolving work health or safety issues at the workplace; or\n       (iii) monitoring the health of workers; or\n       (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or\n      (v) providing information and training for workers; or\n(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.","Omitted the word 'or' at s 49(e)(v). The variation is unlikely to result in a different operation of the provision compared to the model WHS Act. "]
["49A-49C",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) amended the ACT WHS Act to introduce additional consultation requirements on PCBUs who undertake major construction projects, being commercial projects worth over $5 million. These provisions set out new definitions including \"major construction project\", \"principal contractor\" and \"eligible union\"."]
["Division 3 Health and Safety Representatives"]
[" Subdivision 1 Request for election of health and safety representatives",null,null,null," "]
["50 Request for election of health and safety representative\nA worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for 1 or more health and safety representatives to represent workers who carry out work for the business or undertaking."]
["Subdivision 2 Determination of work groups"]
["s50A, 50B N/A",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) inserted sections 50A to 50C. \n\nUnder s 50A the principal contractor for a major construction project must also consult with the eligible union before work starts on the project about the number and composition of work groups, the number of HSRs and deputy HSRs and anything else prescribed by the regulations. Section 50A(7) clarifies that the provision does not give an eligible union any rights of entry. Principal contractors can face penalties for failing to comply with these additional requirements.  \n\nUnder s 50B, the principal contractor can apply to a regulator for exemptions from complying with 1 or more of the additional requirements.\n\nSection 50C requires the principal contractor of a major construction project to facilitate the election of one or more HSRs to represent workers who carry out work for the project."]
["51 Determination of work groups\n(1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of 1 or more work groups of workers.\n(2) The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives.\n(3) A work group may be determined for workers at 1 or more workplaces.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) modified s 51 to include provision for principal contractors of a major construction project to have the same obligations as a PCBU in relation to the determination of work groups.  "]
["52 Negotiations for agreement for work group\n(1) A work group is to be determined by negotiation and agreement between:\n    (a) the person conducting the business or undertaking; and\n     (b) the workers who will form the work group or their representatives.\n(2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.\n(3) The purpose of the negotiations is to determine:\n    (a) the number and composition of work groups to be represented by health and safety representatives; and\n    (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and\n  (c) the workplace or workplaces to which the work groups will apply.\n(4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.\n(5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(6) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW WHS Act includes an additional paragraph at s 52(3). Paragraph (d) provides that one purpose of negotiations for agreement for a work group is to determine the business or undertakings to which the work groups will apply.\n\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The Work Health and Safety Amendment Act 2018 (ACT) modified s 52(2) to include specific obligations on  a principal contractor of a major construction project. \n\nThe principal contractor must take all reasonable steps to commence negotiations for determining a work group with workers when work on the project commences. This means the principal contractor must enter into negotiations even if no worker has requested that they do so (as is the case with PCBUs under the model WHS Act).   \n\nIn accordance with the additional jurisdictional notes, a note under subsection (5) provides that strict liability applies to the offence (s 12A).\n\nSubsection (7) also clarifies that a PCBU includes the principal contractor for a major construction project",null,null,"The Act adds s 52(3)(d) which provides that an additional purpose of the negotiations is to determine \"the businesses or undertakings to which the work groups will apply.\" This is similar to the NSW WHS Act.\n\nThe maximum penalty is 100 penalty units and does not distinguish between an individual and body corporate. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.\n",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. ",null,null,"NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4: Whilst it was not a matter which the Commission needed to determine in this case, the Industrial Relations Commission noted that there appears to be an immediate conundrum in that s 52 negotiations are to take place with the members of a group (or their representatives) about the establishment of that group. The Commission questioned with whom the employer was meant to negotiate, given the workers who must be party to the negotiations are those who will form the group the identification of which is the subject of the negotiations (at [48])."]
[]
["53 Notice to workers\n(1) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.\nMaximum penalty:\nIn the case of an individual—$2000.\nIn the case of a body corporate—$10 000.\n(2) The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers\nof the outcome of the negotiations and of the variation (if any) to the agreement.\nMaximum penalty:\nIn the case of an individual—$2000.\nIn the case of a body corporate—$10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes, the NSW WHS Act replaces the reference to $2000 with 25 penalty units and $10000 with 115 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A)",null,null,"In accordance  with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section provides that the maximum penalty is 20 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["54 Failure of negotiations\n(1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.\n(2) An inspector appointed under subsection (1) may decide:\n      (a) the matters referred to in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires); or\n      (b) that work groups should not be determined or that the agreement should not be varied (as the case requires).\n(3) For the purposes of this section, there is a failure of negotiations if:\n      (a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after—\n          (i) a request is made under section 50; or\n          (ii) a party to the agreement requests the variation of the agreement; or\n      (b) agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence.\n(4) A decision under this section is taken to be an agreement under section 52.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) amended s 54(3)(a) to insert new subparagraph (i). The effect is that there is a failure of negotiations for a major construction project if the PCBU fails to take all reasonable steps to commence negotiations and the negotiations have not commenced when work on the project commences. The existing subparagraphs are re-worded and renumbered as a consequence of the new subparagraph.\n\nThe amendment is consequential of s 50A.  \nThe ACT WHS Act also inserts subsection (5), which provides that a reference to a PCBU in this section includes a principal contractor for a major construction project. ",null,null,null,null,null,null,null,null,null,null,"section bit",null,null,null,"NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4: There is no requirement of continuity between the person who made a request under s 50 to request an election of HSRs and the person who makes a request under s 54(1) for the regulator to appoint an inspector to assist with negotiations (at [50]).\n\n"]
["Subdivision 3 Multiple-business work groups"]
["55 Determination of work groups of multiple businesses\n(1) Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces.\n(2) The particulars of the work groups are to be determined by negotiation and agreement, in accordance with section 56, between each of the persons conducting the businesses or undertakings and the workers.\n(3) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.\n(3) The determination of 1 or more work groups under this Subdivision does not:\n         (a) prevent the determination under this Subdivision or Subdivision 2 of any other work group of the workers concerned; or\n         (b) affect any work groups of those workers that have already been determined under this Subdivision or Subdivision 2.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) added a note to the end of subsection (1) to note the effect of s 50A(2). \n\nReferences to parts of the ACT WHS Act are reworded in line with the drafting conventions used in that jurisdiction.",null,null,null,null,null,null,null,"section bit"]
["56 Negotiation of agreement for work groups of multiple businesses\n(1) Negotiations concerning work groups under this Subdivision must be directed only at the following:\n     (a) the number and composition of work groups to be represented by health and safety representatives;\n     (b) the number of health and safety representatives and deputy health and safety representatives (if any) for each work group;\n     (c) the workplace or workplaces to which the work groups will apply;\n     (d) the businesses or undertakings to which the work groups will apply.\n(2) A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) If agreement cannot be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this Subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.\n(4) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. Provides the maximum penalty is 100 penalty units and does not distinguish between an individual and body corporate.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["57 Notice to workers\n(1) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.\nMaximum penalty:\nIn the case of an individual—$2000.\nIn the case of a body corporate—$10 000.\n(2) A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.\nMaximum penalty:\nIn the case of an individual—$2000.\nIn the case of a body corporate—$10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes, the NSW WHS Act replaces the reference to $2000 with 25 penalty units and $10000 with 115 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. Provides the maximum penalty is 20 penalty units and does not distinguish between an individual and body corporate which is a variance to the model WHS Act. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' . "]
["58 Withdrawal from negotiations or agreement involving multiple businesses\n(1) A party to a negotiation for an agreement, or to an agreement, concerning a work group under this Subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties.\n(2) If a party withdraws from an agreement concerning a work group under this Subdivision:\n      (a) the other parties must negotiate a variation to the agreement in accordance with section 56; and\n      (b) the withdrawal does not affect the validity of the agreement between the other parties in the meantime.",null,null,null,null,null,null,null,null,"section bit"]
["59  Effect of Subdivision on other arrangements\nTo avoid doubt, nothing in this Subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this Part, concerning the representation of those workers.",null,null,null,null,null,null,null,null,"section bit",null,null,null,null,null,"section bit"]
["Subdivision 4 Election of health and safety representatives"]
["60 Eligibility to be elected\nA worker is:\n(a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and\n(b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.",null,null,null,null,null,null,null,null,"section bit",null,null,"section bit",null,null,"section bit"]
["61 Procedure for election of health and safety representatives\n(1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted.\n(2) However, an election must comply with the procedures (if any) prescribed by the regulations.\n(3) If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation.\n(4) The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by the regulations to enable elections to be conducted.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section provides the maximum penalty is 100 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["62 Eligibility to vote\n(1) A health and safety representative for a work group is to be elected by members of that work group.\n(2) All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.",null,null,null,null,null,null,null,null,"section bit"]
["63 When election not required\nIf the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group.",null,null,null,null,null,null,null,null,"section bit",null,null,"section bit",null,null,"section bit"]
["64 Term of office of health and safety representative\n(1) A health and safety representative for a work group holds office for 3 years.\n(2) However a person ceases to hold office as a health and safety representative for a work group if:\n     (a) the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or\n     (b) the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or\n     (c) the person is disqualified under section 65 from acting as a health and safety representative; or\n     (d) the person is removed from that position by a majority of the members of the work group in accordance with the regulations.\n(3) A health and safety representative is eligible for re-election."]
["65 Disqualification of health and safety representatives\n(1) An application may be made to the [designated court or tribunal] to disqualify a health and safety representative on the ground that the representative has:\n     (a) exercised a power or performed a function as a health and safety representative for an improper purpose; or\n     (b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.\n(2) The following persons may make an application under this section:\n     (a) any person adversely affected by:\n           (i) the exercise of a power or the performance of a function referred to in subsection (1)(a); or\n           (ii) the use or disclosure of information referred to in subsection (1)(b); \n     (b) the regulator.\n(3) If the [designated court or tribunal] is satisfied that a ground in subsection (1) is made out, the [designated court or tribunal] may disqualify the health and safety representative for a specified period or indefinitely.\nNote\nSee the jurisdictional notes in the Appendix.","The Commonwealth WHS Act has not designated a specific court or tribunal for an application for the disqualification of a health and safety representative. It inserted the word 'court' which has a broad definition in s 4 of the Commonwealth WHS Act.",null,null,"The NSW Industrial Relations Commission is the \"designated court or tribunal\" for s 65 in the NSW WHS Act.  ",null,null,"The Magistrate's Court is the \"designated court or tribunal\" for s 65.\n\n",null,"section bit","Section 65 of the Qld WHS Act specifies the Queensland Industrial Relations Commission as the designated court or tribunal for the purposes of s 65.\n\nThe Qld WHS Act inserts an addition s 65(4) which provides a person an avenue to appeal a decision of the commission under the Industrial Relations Act 2016 (Qld) Chapter 11 Part 6. This Part enables a person to appeal on an error of law. Each court or tribunal designated in each jurisdiction to hear disqualification matters may set out appeal avenues in other legislation (e.g. Part 7 of the Industrial Relations Act 1996 (NSW).  ",null,"section bit","The South Australian Employment Tribunal (SAET) is the \"designated court or tribunal\" for s 65.",null,"section bit","The Work Health Court is a \"designated court or tribunal\" for s 65.  ",null,null,"The Magistrates Court (Civil Division) is the \"designated court or tribunal\" for s 65."]
["66 Immunity of health and safety representatives\nA health and safety representative is not personally liable for anything done or omitted to be done in good faith:\n(a) in exercising a power or performing a function under this Act; or\n(b) in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.",null,null,null,null,null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104)."]
["67 Deputy health and safety representatives\n(1) Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group.\n(2) If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act:\n          (a) the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and\n         (b) this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative.\n(3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.",null,null,null,null,null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104).\n\nSubsection (3) of the ACT WHS Act does not include reference to s 73 when listing the provisions that also apply to deputy HSRs. Since s 73 of both the model WHS Act and the ACT WHS Act already makes express reference to deputy HSRs there is no likely no practical difference between the provisions.  "]
["Subdivision 4A ss67A-67F",null,null,null,null,null,null," ",null,null,"Subdivision 4A stipulates requirements for the disqualification process for a HSR in addition to those provided under s 65 of the equivalent legislation. The subdivision applies for the purpose of an application to the commission under s 65 to disqualify a HSR."]
["Subdivision 5 Powers and functions of health and safety representatives"]
["68 Powers and functions of health and safety representatives\n(1) The powers and functions of a health and safety representative for a work group are:\n     (a) to represent the workers in the work group in matters relating to work health and safety; and\n     (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act in relation to workers in the work group; and\n     (c) to investigate complaints from members of the work group relating to work health and safety; and \n     (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.\n(2) In exercising a power or performing a function, the health and safety representative may:\n     (a) inspect the workplace or any part of the workplace at which a worker in the work group works:\n           (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and\n           (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and\n    (b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and\n    (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and:\n        (i) an inspector; or\n       (ii) the person conducting the business or undertaking at that workplace or the person's representative; and\n   (d) with the consent of 1 or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and:\n           (i) an inspector; or\n           (ii) the person conducting the business or undertaking at that workplace or the person's representative; and\n     (e) request the establishment of a health and safety committee; and\n     (f) receive information concerning the work health and safety of workers in the work group; and\n    (g) whenever necessary, request the assistance of any person.\nNote\nA health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices.\n(3) Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that:\n     (a) does not identify the worker; and\n    (b) could not reasonably be expected to lead to the identification of the worker.\n(3A) If a person assisting a health and safety representative under subsection (2)(g) requires access to the workplace to provide the assistance, the health and safety representative must give notice of the assistant's proposed entry to:\n      (a) the person conducting the business or undertaking for whom the representative's workgroup carries out the work at the workplace; and\n       (b) the person with management or control of the workplace.\n(3B) A notice under subsection (3A) must:\n      (a) comply with the regulations; and\n      (b) be given during the usual working hours at the workplace at least 24 hours, but not more than 14 days, before the assistant's entry.\n(4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.","In August 2016 the model WHS Act was amended to insert ss 68(3A) and 68(3B). The effect being a HSR is not required to provide notice of the assistant's entry to the PCBU. To date, none of the harmonised jurisdictions have implemented this amendment.\n\nFor further discussion in respect of the insertion of ss 68(3A) and (3B) into the model WHS Act in 2016, see Safe Work Australia's \"Decision Regulation Impact Statement: Improving the model Work Health and Safety laws\", Department of Prime Minister and Cabinet, Canberra, 2014, pp 12-13\nhttps://ris.pmc.gov.au/sites/default/files/posts/2017/01/decision_ris.pdf\n\nACT – Includes a note which informs the reader that where a law gives a person a function, the law also gives the person powers necessary and convenient to exercise the function. \n\nSA - Does not include s 68(3A) and s 68(3B). The SA WHS Act goes from s 68(3) to (5) with s 68(5) stationg the same point as s 68(4) of the model WHS Act. \n\n\n\n\n"]
[]
[]
["69  Powers and functions generally limited to the particular work group\n(1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.\n(2) Subsection (1) does not apply if:\n      (a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or\n      (b) a member of another work group asks for the representative's assistance,\nand the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.\n(3) In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates."]
["Subdivision 6 Obligations of PCBU to HSRs"]
["70 General obligations of person conducting business or undertaking\n(1) The person conducting a business or undertaking must:\n        (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and\n         (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and\n         (c) allow any health and safety representative for the work group to have access to information that the person has relating to:\n               (i) hazards (including associated risks) at the workplace affecting workers in the work group; and\n               (ii) the health and safety of the workers in the work group; and\n         (d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and:\n             (i) an inspector; or\n            (ii) the person conducting the business or undertaking at that workplace or the person's representative; and  \n         (e) with the consent of 1 or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and:\n             (i) an inspector; or\n              (ii) the person conducting the business or undertaking at that workplace or the person's representative; and\n        (f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act; and \n      (g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and \n       (h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works; and\n        (i) provide any other assistance to the health and safety representative for the work group that may be required by the regulations.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104).\n\nIn accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"There is a note which informs the reader of the dispute resolution process under Division 7A which can be used to resolve a dispute regarding HSR access to information (1). The provision also provides for a maximum penalty of 100 penalty units and does not make a distinction between individuals and body corporates.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[]
["71 Exceptions from obligations under section 70(1)\n(1) This section applies despite section 70(1).\n(2) The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that:\n(a) does not identify the worker; and\n(b) could not reasonably be expected to lead to the identification of the worker.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 70(1)(g).\n(4) The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace:\n(a) if the assistant has had his or her WHS entry permit revoked; or\n(b) during any period that the assistant's WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit.\n(5) The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group.\n(5A) The reasonable grounds under subsection (5) include the failure of the health and safety representative to give notice under section 68(3A).\n(6) If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserted ss 71(7) and (8) to provide that a PCBU may refuse access to information mentioned in s 70(1)(c) if it is confidential commercial information (defined in s 71(8)). This reflects recommendation 56 of the Best Practice Review of Workplace Health and Safety Queensland Final Report",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[null,"In August 2016 the model WHS Act was amended to insert s 71(5A).  This provision relates to ss 68(3A) and (3B), which require a HSR to provide notice of an assistant's entry onto premises. To date, none of the harmonised jurisdictions have implemented this amendment. \n\nFor further discussion in respect of the insertion of s 71(5A) into the model WHS Act in 2016, see Safe Work Australia's \"Decision Regulation Impact Statement: Improving the model Work Health and Safety laws\", Department of Prime Minister and Cabinet, Canberra, 2014, pp 12-13\nhttps://ris.pmc.gov.au/sites/default/files/posts/2017/01/decision_ris.pdf\n"]
["72 Obligation to train health and safety representatives\n(1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is—\n(a) approved by the regulator; and\n(b) a course that the health and safety representative is entitled under the regulations to attend; and\n(c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking.\n(2) The person conducting the business or undertaking must:\n(a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training; and\n(b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training.\n(3) If:\n(a) a health and safety representative represents a work group of the workers of more than 1 business or undertaking; and\n(b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative,\neach of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative.\n(4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.\n(5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1)(c) and (2), either party may ask the regulator to appoint an inspector to decide the matter.\n(6) The inspector may decide the matter in accordance with this section.\n(7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6).\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth Act has adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW WHS Act provides that an HSR can choose their training course but must consult with the PCBU as to the timing and reasonable costs of training. Section 72(2) is also amended to make clear that the PCBU is required to allow the HSR time of to attend the course and pay the course fees and reasonable costs within 3 months of the request being made. \n\nThis amendment implements a recommendation of the 2018 review of the model WHS laws.\n\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).                   \n\nThe Work Health and Safety Amendment Act 2018 (ACT) inserted subsection (8) to state that the section does not apply to major construction projects (which is covered by s 72A). ",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) amended subsections 72(1) and (2).\nThe amended provisions requires PCBUs to ensure, so far as is reasonably practicable, that a HSR completes training prescribed in the regulation. Failure to meet this obligation attracts a maximum penalty of 100 penalty units. The PCBU must allow a HSR time off work to attend the training; pay the training fees and any other associated reasonable costs; and pay the HSR their usual entitlements while attending the training.\n\nIn comparison, the model WHS Act does not require the PCBU to organise training unless it is requested by the HSR representative. \n\nSections 72(3) and (4) remain the same.  Sections 72(5)-(7) were omitted as they are no longer relevant (given training is now mandatory). \n\nRecommendation 52 of the Best Practice Review of Workplace Health and Safety Queensland Final Report stated that training for HSRs should be mandated and be completed within six months of the HSR being elected to the role. ",null,null,"Section 72 of the model WHS Act sets out PCBUs’ obligations to train their HSRs and deputy HSRs upon request by those persons. The SA WHS Act instead states a HSR is entitled to take a (minimum) prescribed number of days off work in order to attend WHS training (see subsection (1) and (2)). The prescribed number of days is defined in subsection (9).",null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[]
["s 72A N/A",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) inserted s 72A. The section provides that principal contractors of major construction projects must ensure HSRs attend WHS training as soon as practicable within 3 months after the day the HSR is elected. \n\nIn comparison, under the model WHS Act PCBUs do not have to provide training unless requested by a HSR.  \n\nThe requirements as to the type of training for HSRs for major construction projects is the same as for other HSRs (ie it has to be reulator approved and chosen bu the HSR in consultation with the principal contractor)."]
["73 Obligation to share costs if multiple businesses or undertakings\n(1) If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings:\n       (a) the costs of the representative exercising powers and performing functions under this Act; and \n        (b) the costs referred to in section 72(2)(b),\nfor which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise.\n(2) An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) amended s 73 to include references to s 72A."]
["74 List of health and safety representatives\n\nA person conducting a business or undertaking must ensure that:\n     (a) a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date; and\n     (b) a copy of the up-to-date list is displayed:\n            (i) at the principal place of business of the business or undertaking; and\n            (ii) at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups, in a manner that is readily accessible to workers in the relevant work group or work groups.\n\nMaximum penalty:\n\nIn the case of an individual—$2000.\nIn the case of a body corporate—$10 000.","In 2016, s 74 of the model WHS Act was amended to remove the requirement of PCBUs to provide a list of HSRs to their regulator. To date, none of the harmonised jurisdictions have implemented this amendment. \nFor further discussion in respect of the amendments to the model WHS Act in 2016, see Safe Work Australia's \"Decision Regulation Impact Statement: Improving the model Work Health and Safety laws\", Department of Prime Minister and Cabinet, Canberra, 2014, https://ris.pmc.gov.au/sites/default/files/posts/2017/01/decision_ris.pdf "]
[null,null,null,null,"In accordance with the additional jurisdictional notes, the NSW WHS Act replaces the reference to $2000 with 25 penalty units and $10000 with 115 penalty units. ",null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) replaced the whole section and renamed it 'List of Health and Safety Representatives'. The section provides an additional obligation on PCBUs to provide a copy of the current list of HSRs and deputy HSRs to the regulator, as well as displaying the list in a specified manner. The maximum penalty for failure to comply with this provision is 20 penalty units.\n\nThe explanatory memorandum to the Qld WHS Act states that the availability of a comprehensive list of HSRs will provide Workplace Health and Safety Queensland with the capacity to communicate directly with HSRs and provide relevant support and information.",null,null,"The SA WHS Act has an additional subsection (s 74(2)) which provides that the PCBU must provide a copy of the list prepared under a 74(1) to the regulator as soon as is practicable after the list is prepared.  ",null,null,"Strict liability applies to the physical elements of the offence. \n\nSimilar to Queensland, in addition to the requirements to display an up to date list at the principle place of work and other workplace, a PCBU must also provide a copy of the up-to-date list to the regulator as soon as practicable.",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["Division 4 Health and Safety Committees"]
["75 Health and safety committees\n(1) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking:\n       (a) within 2 months after being requested to do so by:\n           (i) a health and safety representative for a work group of workers carrying out work at that workplace; or\n          (ii) 5 or more workers at that workplace; or\n       (b) if required by the regulations to do so, within the time prescribed by the regulations.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.\n(2) A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person's own initiative.\nNote\nIf a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see Division 2 of this Part.","The Commonwealth WHS Act includes an additional provision. Subsection 75(1A) provides that section 4K of the Crimes Act does not apply to the offence in subsection (1). The effect is that a PCBU is not liabile for an offence in respect of each day that they fail to comply with the obligation to establish a HSC.  This change is permitted by the jurisdicitonal note which states that the Commonwealth my disapply s 4K of the Crimes Act in relation to offences under ss 75 and 149. \n\nIn accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. ",null,null,"In accordance with the additional jurisdictional notes the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section provides the maximum penalty is 50 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act. \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,"corresponds","In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["76 Constitution of committee\n(1) Subject to subsections (2) to (4), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace.\n(2) If there is a health and safety representative at a workplace, that representative, if he or she consents, is a member of the committee.\n(3) If there are 2 or more health and safety representatives at a workplace, those representatives may choose 1 or more of their number (who consent) to be members of the committee.\n(4) At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking.\n(5) If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter.\n(6) An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established.\n(7) A decision of an inspector under this section is taken to be an agreement under this section between the parties.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) inserted additional s 76(4A) which deals with HSCs established by the principal contractor for a major construction project. It provides that at least half of the members of the committee must be workers carrying out work on the project. There is no requirement under the model WHS Act.",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) amended s 76(2) to require the membership of a HSC to include the HSR (if there is one and they consent) on the committee as well as the HSC officer, if there is one. "]
["76A N/A",null,null,null,"Section 76A sets out special provisions for coal mines. It requires a HSC to have at least one site safety and health representative for the coal mine and one electrical safety and health representation on the committee."]
["77 Functions of committee\nThe functions of a health and safety committee are:\n(a) to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work; and\n(b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and\n(c) any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee."]
["78 Meetings of committee\nA health and safety committee must meet:\n(a) at least once every 3 months; and\n(b) at any reasonable time at the request of at least half of the members of the committee.",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) amended s 78(b) to provide an additional circumstance - that the committee must meet if requested by the WHS officer. "]
["79 Duties of person conducting business or undertaking\n(1) The person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.\n(3) The person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to:\n(a) hazards (including associated risks) at the workplace; and\n(b) the health and safety of the workers at the workplace.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(4) Despite subsection (3), the person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that:\n(a) does not identify the worker; and\n(b) could not reasonably be expected to lead to the identification of the worker.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The section provides the maximum penalty is 100 penalty units. The section also does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[]
["s79A N/A",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) inserted s 79A which imposes obligations on the principal contractor for a major construction project in relation to training of members of a HSC. \n\nTraining must be provided within a 3 month period after the day the HSC is constituted.\n\nIn contrast, there is no requirement for members of a HSC to be provided training, even if it is requested by members of the HSC, under the model WHS Act. "]
["Division 5 Issue resolution"]
["80 Parties to an issue\n(1) In this Division, parties, in relation to an issue, means the following:\n     (a) the person conducting the business or undertaking or the person's representative; \n     (b) if the issue involves more than 1 business or undertaking, the person conducting each business or undertaking or the person's representative;\n      (c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative;\n      (d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.\n(2) A person conducting a business or undertaking must ensure that the person's representative (if any) for the purposes of this Division:\n    (a) is not a health and safety representative; and\n    (b) has an appropriate level of seniority, and is sufficiently competent, to act as the person's representative."]
["81 Resolution of health and safety issues\n(1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue.\n(2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations.\n(3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue."]
["82 Referral of issue to regulator for resolution by inspector\n(1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue.\n(2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue.\n(3) A request to the regulator under this section does not prevent:\n(a) a worker from exercising the right under Division 6 of this Part to cease work; or\n(b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work.\n(4) On attending a workplace under this section, an inspector may exercise any of the inspector's compliance powers under this Act in relation to the workplace.",null,null,null,null,null,null,null,null,null,"The Workplace Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserts a note to redirect the reader to Division 7A which sets out a dispute resolution process via the courts."]
["Division 6 Right to cease or direct cessation of unsafe work"]
["83 Definition of cease work under this Division\nIn this Division, cease work under this Division means:\n(a) to cease, or refuse, to carry out work under section 84; or\n(b) to cease work on a direction under section 85."]
["84 Right of worker to cease unsafe work\nA worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Blomfield v Bechtel Construction (Australia) Pty Ltd [2012] FCA 1494: In determining whether or not a worker has a \"reasonable concern\" for the purposes of s 84 of the Qld WHS Act, the Court must be satisfied there is an absence of any reasonable basis for the worker's concern, or that the basis for the concern is fanciful, illogical, irrational or lacking a reasonable foundation (at [7] – [8])."]
["85 Health and safety representative may direct that unsafe work cease\n(1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.\n(2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after:\n(a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and\n(b) attempting to resolve the matter as an issue under Division 5 of this Part.\n(3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under Division 5 of this Part if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.\n(4) The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).\n(5) The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section.\n(6) A health and safety representative cannot give a direction under this section unless the representative has:\n(a) completed initial training prescribed by the regulations referred to in section 72(1)(b); or\n(b) previously completed that training when acting as a health and safety representative for another work group; or\n(c) completed training equivalent to that training under a corresponding WHS law.",null,null,null,null,null,null,"The Work Health and Safety Amendment Act 2018 (ACT) amended s 85(6)(a) to insert a reference to s 72A(2)(b), to reflect the additional obligation on a principal contractor on major construction projects to ensure HSRs attend training. "]
["86 Worker to notify if ceases work\nA worker who ceases work under this Division must:\n(a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative; and\n(b) remain available to carry out suitable alternative work.",null,null,null,null,null,null,null,null,null,null,null,null,"Section 86 has been varied to expressly exclude the section from applying to workers who cease work under a direction from a HSR. \n\nThe practical effect of this change is that paragraph (b) does not apply to a worker who ceases work under a direction from a HSR (those workers were already excluded from paragraph (a) under the model WHS Act provision). "]
["87 Alternative work\nIf a worker ceases work under this Division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties."]
["88 Continuity of engagement of worker\nIf a worker ceases work under this Division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work:\n(a) at the same or another workplace; and\n(b) that was safe and appropriate for the worker to carry out."]
["89 Request to regulator to appoint inspector to assist\nThe health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.\nNote\nThe issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.",null,null,null,null,null,null,null,null,null,"The Workplace Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserts a note to direct the reader that the dispute resolution process set out in Division 7A can be utilised in addition to the issue resolution procedure in Division 5."]
["Division 7 Provisional improvement notices"]
["90 Provisional improvement notices\n(1) This section applies if a health and safety representative reasonably believes that a person:\n(a) is contravening a provision of this Act; or \n(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.\n(2) The health and safety representative may issue a provisional improvement notice requiring the person to:\n(a) remedy the contravention; or\n(b) prevent a likely contravention from occurring; or\n(c) remedy the things or operations causing the contravention or likely contravention.\n(3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.\n(4) A health and safety representative cannot issue a provisional improvement notice unless the representative has:\n(a) completed initial training prescribed by the regulations referred to in section 72(1)(b); or\n(b) previously completed that training when acting as a health and safety representative for another work group; or\n(c) completed training equivalent to that training under a corresponding WHS law.\n(5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.",null,null,null,null,null,null,"Section 90(4)(a) of the ACT WHS Act includes a reference to s 72A(2)(b), to reflect the additional obligation on a principal contractor on major construction projects to ensure HSRs attend training. \n\nThe ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104)."]
[]
["91 Provisional improvement notice to be in writing\nA provisional improvement notice must be in writing."]
["92 Contents of provisional improvement notice\nA provisional improvement notice must state:\n    (a) that the health and safety representative believes the person:\n        (i) is contravening a provision of this Act; or\n        (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and\n   (b) the provision the representative believes is being, or has been, contravened; and\n   (c) briefly, how the provision is being, or has been contravened; and\n   (d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention."]
["93 Provisional improvement notice may include recommendations to remedy contravention\n(1) A provisional improvement notice may include recommendations concerning the measures that may be taken to remedy the contravention, prevent the likely contravention, or the matters causing the contravention or likely contravention, to which the notice relates.\n(2) It is not an offence to fail to comply with the recommendations in a notice.","As part of the suite of amendments to the model WHS Act in 2016, s 93 was amended to delete the reference to \"directions\" and replace it with a reference to \"recommendations\". To date, none of the harmonised jurisdictions have implemented this amendment.\n\nFor further discussion in respect of the amendment to s 93 of the model WHS Act, see Safe Work Australia's \"Decision Regulation Impact Statement: Improving the model Work Health and Safety laws\", Department of Prime Minister and Cabinet, Canberra, 2014, pp 12-13\nhttps://ris.pmc.gov.au/sites/default/files/posts/2017/01/decision_ris.pdf\n"]
["94 Minor changes to provisional improvement notice\nA health and safety representative may make minor changes to a provisional improvement notice:\n(a) for clarification; or\n(b) to correct errors or references; or\n(c) to reflect changes of address or other circumstances."]
["95 Issue of provisional improvement notice\nA provisional improvement notice may be issued to a person in accordance with section 209."]
["96 Health and safety representative may cancel notice\nThe health and safety representative may at any time cancel a provisional improvement notice issued to a person by written notice given to that person."]
["97 Display of provisional improvement notice\n(1) A person to whom a provisional improvement notice is issued must as soon as practicable 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.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.\n(2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance  with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section provides the maximum penalty is 50 penalty units. The section does not distinguish between an individual and body corporate which is a variance from the model WHS Act.\n\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes a note clarifies  that  strict liability applies to each offence (s12B) under s 97(1). Section 97(3) has been inserted to state that s 12B does not apply to an offence against s 97(2). ",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["s97A N/A",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Act 2017 (Qld) inserted s 97A which provides that a HSR who issues a PIN must provide a copy to the regulator. The penalty is 50 units.\nThe explanatory memorandum to the Qld WHS Act states that providing a copty of PINS to the regulator will ensure they have a undertanding of common issues identified by HSRs across the industry."]
["98 Formal irregularities or defects in notice\nA provisional improvement notice is not invalid only because of:\n(a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or\n(b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person."]
["99 Offence to contravene a provisional improvement notice\n(1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace.\n(2) The person must comply with the provisional improvement notice within the time specified in the notice.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT WHS Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section the maximum penalty is 500 penalty units. The section also does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and section 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT WHS Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["100 Request for review of provisional improvement notice\n(1) Within 7 days after a provisional improvement notice is issued to a person:\n(a) the person to whom it was issued; or\n(b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work,\nmay ask the regulator to appoint an inspector to review the notice.\n(2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review."]
["101 Regulator to appoint inspector to review notice\n(1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100.\n(2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.\n(3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired."]
["102 Decision of inspector on review of provisional improvement notice\n(1) After reviewing the provisional improvement notice, the inspector must:\n    (a) confirm the provisional improvement notice; or\n    (b) confirm the provisional improvement notice with changes; or\n    (c) cancel the provisional improvement notice.\n(2) The inspector must give a copy of his or her decision to:\n   (a) the applicant for the review of the provisional improvement notice; and\n   (b) the health and safety representative who issued the notice.\n(3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act."]
["Division 7A (s102A-102G)",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserts division 7A. This division sets out a process which enables parties involved in a WHS issue, an issue under ss 70(1)(c), 70(1)(g) or a cease work issue, to seek the assistance of the Commission to resolve the issue for them.\n\nA party can only seek the Commission's assistance if it remains unresolved 24 hours from the time an inspector has been requested by the parties to help resolve the issue. \n\nThe Commission can exercise its powers to settle the dispute, which included arbitration and conciliation. The Commission can also elect not to deal with the issue.\nParties can seek review of the Commission's decision through existing appeal mechanisms (being Chapter 11 Part 6 of the Industrial Relations Act 2016)."]
["Division 8 Part does not apply to prisoners"]
["103 Part does not apply to prisoners\nNothing in this Part applies to a worker who is a prisoner in custody in a prison or police gaol.\nNote\nSee the jurisdictional note in the Appendix.",null,null,null,"In accordance with the jurisdictional note the NSW WHS Act varies the wording to conform to its local legislation. The provision refers to a worker who is in lawful detention or custody.",null,null,"In accordance with the jurisdictional note, the ACT WHS Act includes a note that states that WHS for detainees in correctional centres is dealt with in the Corrections Management Act 2007 (ACT), s 219.",null,null,"In accordance with the jurisdictional note the Qld WHS Act varies the wording to conform to its local legislation. The provision sets out a comprehensive list of prisoners and detainees to which the part does not apply.",null,null,null,null,null,"In accordance with the jurisdictional note the NT WHS Act varies the wording to conform to its local legislation. The provision states that the part does not apply to a prisoner in custody in a custodial correctional facility, as defined in Correctional Services Act (NT). ",null,null,"In accordance with the jurisdictional note the Tas WHS Act varies the wording to conform to its local legislation. The provision states it does not apply to a worker who is in lawful detention or custody."]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Consultation co-operation and co-ordination "]
["s103A"," ",null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld) inserted Part 5A which creates the position of a Work Health and Safety Officer (WHSO). Section 103A sets out that a PCBU may appoint a person who holds a certificate of authority for appointment as a WHSO for the business or undertaking. Nothing prevents a PCBU from appointing themselves as the WHSO for the business or undertaking.\n"]
["s103B",null,null,null,null,null,null,null,null,null,"Section 103B sets out the general functions of a WHSO (who is not a PCBU) for a business or undertaking. These are to notify the PCBU on WHS matters; to identify hazards and risks arising from the work of the business or undertaking and report on them in writing to the PCBU; to immediately notify the PCBU about a work health and safety incident or any immediate or imminent risk to health and safety; to investigate or assist in the investigation of any incidents; to accompany an inspector during inspection of a business or undertaking; to establish appropriate WHS educational and training programs; and any other function prescribed in regulation."]
["s103C",null,null,null,null,null,null,null,null,null,"Section 103C sets the functions of a WHSO who is the PCBU. The functions are to investigate or assist in the investigation of any incidents; to accompany an inspector during inspection of a business or undertaking; to establish appropriate WHS educational and training programs; and any other function prescribed in regulation. Functions that require the WHSO to report or notify the PCBU do not apply when the WHSO is the PCBU."]
["s103D",null,null,null,null,null,null,null,null,null,"section 103D sets out the assessment functions which a WHSO must undertake at specified intervals to assess risks to health and safety from the work of the business or undertaking and in accordance with any work health and safety criteria approved by the health and safety committee. Specified intervals means the intervals agreed between the health and safety committee and the WHSO or otherwise at least every 12 months."]
["s103E",null,null,null,null,null,null,null,null,null,"Section 103E sets out the requirements for a WHSO to prepare a report on the assessment carried out under in s 103D. If the assessment identifies any risks to health and safety the report must include recommendations about managing the risks. The report is to be provided to the PCBU within 30 days of the assessment being carried out."]
["s103F",null,null,null,null,null,null,null,null,null,"Section 103F sets out the general obligations of a PCBU in relation to WHSOs, which are similar to the obligations a PCBU has towards a HSR. These obligations include: giving the WHSO information the PCBU has about risks to work health and safety at the business or undertaking; allowing the WHSO to be present at interviews between the PCBU and a worker (with the worker’s consent). "]
["s103G",null,null,null,null,null,null,null,null,null,"Section 103G sets out the circumstances in which a person cannot be held personally liable for their actions or omissions as a WHSO."]
["s103H",null,null,null,null,null,null,null,null,null,"Section 103H provides that appointment of a WHSO by a PCBU does not affect any duties or obligation owed by the PCBU under the WHS Act."]
["s103I",null,null,null,null,null,null,null,null,null,"Section 103I imposes an obligation on the PCBU to display a notice identifying each WHSO at that business or undertaking. The maximum penalty for non-compliance is 40 penalty units."]

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["Model Act ","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Prohibition of discriminatory, coercive and misleading conduct"]
["104 Prohibition of discriminatory conduct\n(1) A person must not engage in discriminatory conduct for a prohibited reason.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000.\n(2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.\nNote:\nCivil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.","The Commonwealth WHS Act has inserted subsection (3) which provides that the fault element for the physical element of the offence is 'intention'. \n\nIn accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note NSW has replaced the reference to $100,000 with 1155 penalty units and  $500,000 with 5770 penalty units. ",null,null,"Section 104 of the ACT WHS Act inserts an additional section 104(3). Section 104(3) provides that for the purposes of the application of the Criminal Code 2002 (ACT) intention is the fault element of the physical element of engaging in conduct, for the purposes of the offence in section 104(1).",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty for contravention of s104(1) is 1,000 penalty units. The Qld WHS Act only provides for one penalty. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the model Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.\n",null,null,null,null,null,"The NT WHS Act contains an additional subsection, 104(3), which removes strict liability for the offence. Section 12B of the NT WHS Act provides that strict liability applies to the physical elements of all offences in the Act unless otherwise stated.",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' . "]
["105 What is discriminatory conduct\n(1) For the purposes of this Part, a person engages in discriminatory conduct if:\n(a) the person:\n(i) dismisses a worker; or\n(ii) terminates a contract for services with a worker; or\n(iii) puts a worker to his or her detriment in the engagement of the worker; or\n(iv) alters the position of a worker to the worker's detriment; or\n(b) the person:\n(i) refuses or fails to offer to engage a prospective worker; or\n(ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or\n(c) the person terminates a commercial arrangement with another person; or\n(d) the person refuses or fails to enter into a commercial arrangement with another person.\n(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action."]
["106 What is a prohibited reason\nConduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105(1)(c) or (d) (as the case requires):\n(a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee; or\n(b) undertakes, has undertaken or proposes to undertake another role under this Act; or\n(c) exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or \n(d) exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or\n(e) performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or\n(f) refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or\n(g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or\n(h) raises or has raised or proposes to raise an issue or concern about work health and safety with:\n(i) the person conducting a business or undertaking; or\n(ii) an inspector; or\n(iii) a WHS entry permit holder; or\n(iv) a health and safety representative; or\n(v) a member of a health and safety committee; or\n(vi) another worker; or \n(vii) any other person who has a duty under this Act in relation to the matter; or\n(viii) any other person exercising a power or performing a function under this Act; or\n(i) is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or\n(j) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.",null,null,null,null,null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 (Qld)amended s 106(h) to ensure work health and safety officers (who are not PCBUs) are included on the list  of office holders to whom an issue or concern has been raised or proposed to be raised. "]
[]
["107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct\nA person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000.\nNote\nCivil proceedings may be brought under Division 3 of this Part if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason.","The Commonwealth WHS Act has inserted subsection (2) which provides that the fault element is intention for the physical element of the offence. \n\nIn accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note NSW has replaced the reference to $100,000 with 1155 penalty units and  $500,000 with 5770 penalty units. ",null,null,"Section 107 of the ACT WHS Act contains an additional section 107(2) which provides that, for the purpose of the application of the Criminal Code 2002 (ACT), intention is the fault element for the physical element of requesting, instructing, inducing, encouraging, authorising, or assisting another person to engage in conduct.",null,null,"In accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The section provides the maximum penalty is 1000 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"Section 107 of the NT WHS Act makes the model WHS Act provision narrower by limiting the operation of the section to conduct which is expressly intentional.\n\nThe section also provides that strict liability does not apply to the physical elements referred to in subsection (1)(a). Section 12B of the NT WHS Act  provides that strict liability applies to the physical elements of all offences in the Act unless otherwise stated.\n",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["108 Prohibition on coercion or inducement\n(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person:\n(a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act; or \n(b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act; or\n(c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way; or\n(d) to refrain from seeking, or continuing to undertake, a role under this Act.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000.\nNote\nCivil proceedings may be brought under Division 3 of this Part in relation to a contravention of this section.\n(2) In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that person.\n(3) To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth has included a definition of emergency services worker, but has placed it in s 4, definitions.\n\nIn accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the jurisdictional note the NSW WHS Act has inserted subsection (4) which provides that an emergency services worker includes an officer, employee or member of any of the following:\n(a) the Ambulance Service of NSW,\n(b) Fire and Rescue NSW,\n(c) the NSW Rural Fire Service,\n(d) the NSW Police Force,\n(e) the State Emergency Service,\n(f) the NSW Volunteer Rescue Association Inc,\n(g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001,\n(h) an accredited rescue unit within the meaning of the State Emergency and Rescue\nManagement Act 1989.\"\n\nIn accordance with the additional jurisdictional note NSW has replaced the reference to $100,000 with 1155 penalty units and  $500,000 with 5770 penalty units. ",null,null,"In accordance with the jurisdictional note the ACT WHS Act has inserted s 108(4) which provides that an emergency services worker means:\n(a) a police officer; or \n(b) a member of an emergency service. \nNote: an emergency service means the ambulance service, the fire and rescue service, the rural fire service or the SES (see Legislation Act, Dictionary, Pt 1).",null,null,"In accordance with the jurisdictional note the Qld WHS Act has inserted s 108(4) which provides that an emergency services worker refers to a person who under an Act is authorised to give directions to anyone else for the purposes of an emergency.\n\nIn accordance with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 108(1) is 1000 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"The NT WHS Act does not apply strict liability to an offence against subsection (1).  Section 12B of the NT WHS Act provides that strict liability applies to the physical elements of all offences in the Act unless otherwise stated.\n\nIn accordance with the jurisdictional note the  NT WHS Act has inserted subsection (4) which provides that an emergency services worker means:\n(a) a police officer; or\n(b) a member, as defined in s 3(1) of the Fire and Emergency Act; or\n(c) a person of a prescribed class.",null,null,"In accordance with the jurisdictional note the  Tas WHS Act has inserted s 108(4) which provides that an emergency services worker means a person who is under an Act authorised to give directions to anyone else for the purposes of an emergency.\n\nIn accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["109 Misrepresentation\n(1) A person must not knowingly or recklessly make a false or misleading representation to another person about that other person's:\n(a) rights or obligations under this Act; or\n(b) ability to initiate, or participate in, a process or proceedings under this Act; or \n(c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000.\n(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note NSW has replaced the reference to $100,000 with 1155 penalty units and  $500,000 with 5770 penalty units. ",null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104).",null,null,"In accordance  with the additional jurisdictional notes the Qld WHS Act expresses the maximum penalty in penalty units.  The maximum penalty for contravention of s 109(1) is 1000 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and s 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"Section 109(1A) is inserted to specify that s 12B of the NT WHS Act does not apply to s 109 and the offence is not of strict liability. ",null,null,"In accordance with the additional jurisdictional notes the Tas WHS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["Division 2 Criminal Proceedings in relation to discriminatory conduct"]
["110 Proof of discriminatory conduct\n(1) This section applies if in proceedings for an offence of contravening section 104 or 107, the prosecution:\n(a) proves that the discriminatory conduct was engaged in; and\n(b) proves that a circumstance referred to in section 106(a) to (j) existed at the time the discriminatory conduct was engaged in; and\n(c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.\n(2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.\n(3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.\nNote\nSee the jurisdictional note in the Appendix.",null,null,null,null,null,null,null,null,null,"In accordance with the jurisdictional note the Qld WHS Act has omitted s 110(c) and substituted the following for s 110(2):\n\nIf it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.\n\nThe effect is that under the Qld WHS Act it is not necessary to adduce evidence that the discriminatory conduct was engaged in for a prohibited reason.\n\nWhile the wording in s 110(2) has some differences, there are no substantive differences that will have an impact on the application of the Qld WHS Act.\n\n",null,null,"In accordance with the jurisdictional note the SA WHS Act has omitted s 110(1)(c) and substituted the following for s 110(2):\n\nIf it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.\n\nThe effect is that under the SA WHS Act it is not necessary to adduce evidence that the discriminatory conduct was engaged in for a prohibited reason.\n\nWhile the wording in s 110(2) has some differences, there are no substantive differences that will have an impact on the application of the Act. ",null,null,"In accordance with the jurisdictional note the NT WHS Act has omitted s 110(1)(c) and substituted the following for s 110(2):\n\nIf it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct.\n\nThe effect is that under the NT WHS Act it is not necessary to adduce evidence that the discriminatory conduct was engaged in for a prohibited reason.\n\nWhile the wording in s 110(2) has some differences, there are no substantive differences that will have an impact on the application of the Act.\n\n"]
["111 Order for compensation or reinstatement\nIf a person is convicted or found guilty of an offence under section 104 or 107, the court may (in addition to imposing a penalty) make either or both of the following orders:\n(a) an order that the offender pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate;\n(b) in relation to a person who was or is an employee or prospective employee, an order that:\n(i) the person be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or\n(ii) the person be employed in the position for which he or she had applied or a similar position."]
["Division 3 Civil proceedings in relation to discriminatory or coercive conduct"]
["112 Civil Proceedings in relation to engaging in or inducing discriminatory or coercive conduct\n(1) An eligible person may apply to the [designated court or tribunal] for an order under this section.\n(2) The [designated court or tribunal] may make 1 or more of the orders set out in subsection (3) in relation to a person who has:\n(a) engaged in discriminatory conduct for a prohibited reason; or \n(b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or\n(c) contravened section 108.\n(3) For the purposes of subsection (2), the orders that the [designated court or tribunal] may make are:\n(a) an injunction; or\n(b) in the case of conduct referred to in subsection (2)(a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the [designated court or tribunal] considers appropriate; or\n(c) in the case of conduct referred to in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that:\n(i) the worker be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or\n(ii) the prospective worker be employed in the position for which he or she had applied or a similar position; or\n(d) any other order that the [designated court or tribunal] considers appropriate.\n(4) For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct. \n(5) Nothing in this section is to be construed as limiting any other power of the [designated court or tribunal].\n(6) For the purposes of this section, each of the following is an eligible person:\n(a) a person affected by the contravention;\n(b) a person authorised as a representative by a person referred to in paragraph (a).\nNote\nSee the jurisdictional note in the Appendix.","The Commonwealth WHS Act has not designated a particular court or tribunal. Instead, the term 'court' is used which is defined broadly in s 4 of the Commonwealth WHS Act.",null,null,"The District Court is the designated court for the purposes of s 112 of the NSW WHS Act.\n\nThe NSW WHS Act specifies that for the purposes of subsection 112(2) the NSW District Court can make an order declaring that the person has engaged in conduct of a type referred to in subsection (2)(a), (b) or (c). ",null,null,"The ACT WHS Act has nominated the Supreme Court as the appropriate court to hear applications for injunctions. \n\nThe ACT WHS Act has nominated any 'court of competent jurisdiction' for the orders under subsection (3)(b)-(d). These matters would likely be heard by the ACT Magistrates Court sitting as the Industrial Court - see Magistrates Court Act 1930 (ACT) Chapter 4D.\n\nThe Industrial Court may also transfer matters to the Supreme Court where it considers it appropriate to do so. ",null,null,"The Magistrate's Court is the designated court or tribunal for the purposes of s 112 of the Queensland Act.\n\nThere is a Note to s 112(1) of the Qld WHS Act which is as follows: \"Note - The Uniform Civil Procedure Rules 1999 generally apply.\"",null,null,"The SA WHS Act specifies the South Australian Employment Tribunal as the designated Tribunal for s 112. ",null,null,"The NT WHS Act specifies the Work Health Court as the designated Court for s 112.",null,null,"The Tas WHS Act specifies the Magistrates Court (Civil Division) as the designated court for s 112."]
["113 Procedure for civil actions for discriminatory conduct\n(1) A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued.\n(2) In a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.\n(3) It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) if the defendant proves that:\n(a) the conduct was reasonable in the circumstances; and\n(b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law. \n(4) To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.",null,null,null,null,null,null,"The ACT WHS Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104)."]
["Division 4 General"]
["114 General provisions relating to orders\n(1) The making of an order in a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 or 107 in relation to the same conduct.\n(2) If the [designated court or tribunal] makes an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b), the court cannot make an order under section 111 in a proceeding for an offence under section 104 or 107 in relation to the same conduct.\n(3) If the court makes an order under section 111 in a proceeding for an offence under section 104 or 107, the [designated court or tribunal] cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112(2)(a) or (b) that is the same conduct.\nNotes\nSee the jurisdictional note in the Appendix.","The Commonwealth WHS Act has not designated a particular court or tribunal. Instead, the term 'court' is used which is defined broadly in s 4 of the Commonwealth WHS Act.",null,null,"The District Court is the designated court for the purposes of s 114 of the NSW WHS Act.",null,null,"The Supreme Court or a Court of competent jurisdiction is the designated Court for the ACT WHS Act (see s 112 in respect of when each Court should be used.) \n\nReferences to parts of the ACT WHS Act are reworded in line with the drafting conventions used in that jurisdiction.",null,null,"The Magistrate's Court is the designated court or tribunal for the purposes of s 114 of the Qld WHS Act.",null,null,"The SA WHS Act specifies the South Australian Employment Tribunal as the designated Tribunal for s 114.",null,null,"The NT WHS Act specifies the Work Health Court as the designated Court for s 112.",null,null,"The Tas WHS Act specifies the Magistrates Court (Civil Division) as the designated court for s 114."]
["115 Prohibition of multiple actions\nA person cannot:\n(a) commence a proceeding under Division 3 of this Part if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn; or \n(b) recover any compensation under Division 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State; or\n(c) commence or continue an application under Division 3 of this Part if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers' compensation."]

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["Model Act ","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Introductory"]
["116 Definitions\nIn this Part:\nofficial of a union means a person who holds an office in, or is an employee of, the union.\n\nrelevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry.\n\nrelevant State or Territory industrial law means:\nNote\nSee the jurisdictional note in the Appendix.\n\nrelevant union means the union that a WHS entry permit holder represents.\n\nrelevant worker, in relation to a workplace, means a worker:\n(a) who is a member, or eligible to be a member, of a relevant union; and\n(b) whose industrial interests the relevant union is entitled to represent; and\n(c) who works at that workplace.","The Commonwealth WHS Act has omitted the definition for \"relevant State or Territory industrial law\" in accordance with the jurisdictional note. \n \nNote, however, s 4 (definitions) includes \"relevant state or territory industrial law\"and refers to s 116. This is likely a drafting oversight.\n ",null,null,"Section 116 of the model WHS Act includes a definition of relevant State or Territory industrial law. In accordance with the jurisdictional note to that section, a State or Territory may insert its relevant industrial law. The Commonwealth may omit this definition and omit references to \"relevant State or Territory industrial law\" where they appear in ss 124, 131, 133, 137, 138 and 150. \n\nNSW has inserted the Industrial Relations Act 1996.\n\nThe NSW WHS Act does not address the relevant industrial law in this section.",null,null,"The ACT Act does not include a definition of 'relevant State or Territory industrial law'. This is because the Fair Work Act 2009 (Cth) is the only relevant industrial law covering the ACT.",null,null," As with all other Acts, the Qld Act does not include a definition of 'relevant State or Territory industrial law'. This may because the Act instead refers to an 'industrial officer authority' (defined).\n\nThe Queensland Act omits the descriptive note immediately before s 116 of the Model Act. This does not change the meaning or operation of s 116 or Part 7 of the Model Act.\n",null,null,"As with all other Acts the SA Act does not include a definition of 'relevant State or Territory industrial law'.\nThis is because there is only one relevant State industrial law being the Fair Work Act 1994.",null,null,"As with all other Acts except the Commonwealth, this Act does not include a definition of 'relevant State or Territory industrial law'. This is because the Fair Work Act 2009 is the only relevant industrial law covering the NT.\n\n\n",null,null,"As with all other Acts except the Commonwealth, the Tasmanian Act does not include a definition of 'relevant State or Territory industrial law'. This is because the only relevant state industrial law is the Industrial Relations Act 1984 (Tasmania)."]
["Division 2 Entry to inquire into suspected contraventions"]
["117 Entry to inquire into suspected contraventions\n(1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.\n(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.\n(3) Before entering a workplace under this section, the WHS entry permit holder must give notice of the proposed entry and the suspected contravention to:\n(a) the relevant person conducting a business or undertaking; and\n(b) the person with management or control of the workplace.\n(4) The notice must comply with the regulations.\n(5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.\n(6) Subsection (3) does not apply if:\n(a) the authorising authority has issued an exemption certificate for the entry under subsection (7); and\n(b) the WHS entry permit holder gives a copy of the certificate to the persons referred to in subsection (3):\n(i) before entering the workplace; or\n(ii) as soon as is practicable after entering the workplace.\n(7) The authorising authority must issue an exemption certificate to a union for an entry under subsection (1) if:\n(a) the union has applied for the certificate; and\n(b) the authorising authority reasonably believes there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard at the workplace.\n(8) An exemption certificate under subsection (7) must comply with the regulations.","In August 2016 the Work Health and Safety Amendment Bill 2016 insert ss 117(3)(8) and removed s 119 of the model WHS Act. As a result, under the model WHS Act a WHS entry permit holder must provide at least 24 hours’ notice for entry to enquire into suspected contraventions (previously there was no obligation on the WHS entry permit holder to provide notice before enquiring into suspected contraventions).\n\nNo harmonised jurisdiction has implemented these amendments.  Under the jurisdiction's WHS Acts there is no obligation on the WHS entry permit holder to provide notice before enquiring into suspected contraventions.\n\nThe amendments were made following the introduction of the Qld WHS Act in 2011, which contained similar requirements. However, Qld have subsequently repealed the relevant provisions, taking its law back to the original model provision. "]
[null,null,null,null,null,null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT), s 104).",null,null,null,null,null,"The SA Act adopts a more restrictive approach to the entry of WHS entry permit holders than the Model Act, as it places additional obligations on a WHS entry permit holder. This includes:\n• the WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health and safety of a relevant worker (subsection (2)).  \n• a WHS permit holder must give consideration as to whether it is reasonably practicable to give notice to the Executive Director of SafeWork SA about the proposed entry before exercising entry under subsection (1), in order to provide a a SafeWork SA inspector the opportunity to attend at the time of entry (subsection (3)(a))\n• if a permit holder was not accompanied by an inspector when attending the workplace, the permit holder must furnish a report on the outcome of their attendance. The Executive Director must give consideration to whether action is taken in response to the report (subection (6)).\n\nThe SA Act also requires SafeWork SA to establish and maintain a policy in respect of the inspector's attendance at a workplace (subsections (4) and (5)). "]
["118 Rights that may be exercised while at workplace\n(1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act:\n(a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;\n(b) consult with the relevant workers in relation to the suspected contravention;\n(c) consult with the relevant person conducting a business or undertaking about the suspected contravention;\n(d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that:\n(i) is kept at the workplace; or\n(ii) is accessible from a computer that is kept at the workplace;\n(e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.\n(2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.\n(3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.\nNotes\n1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120.\n2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"Subsection (1) is varied to provide that a WHS entry permit holder may do “1 or more” of the actions listed in paragraphs (a) to (e). This does not change the effect of the provision.\n\nThe ACT Act inserts a new Note 1 for s 118, which refers to s 58 of the Criminal Code 2002 (ACT) in relation to 'evidential burden'. \n\nThe subsequent notes under s 118 have been renumbered.",null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The section provides the maximum penalty is 100 penalty units. The section does not distinguish between an individual and body corporate which is a variance to the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,"The SA Act has deleted the notes, added a new subsection (2)(a) and moved what was subsection (2) in the model Act into subs (2)(b). \n\nSubsection (2)(a) imposes further restrictions on WHS entry permit holders, as it provides that the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder).\n",null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. ",null,null,"Director of the Fair Work Building Industry Inspectorate v Bragdon and Others [2015] FCA 668: The Federal Court found section 118 of the NSW Act does not  confer upon a person who holds an entry permit any right to order the cessation of work or to shut down a site for actual or suspected safety concerns ([63])\n\nConstruction, Forestry, Mining and Energy Union v Class 1 Form Pty Ltd [2017] FCCA 696:  Judge Jarrett  emphasised that for the rights sets out in section 118 of the ACT Act to be engaged, it was necessary for the WHS entry permit holder to have a reasonable suspicion that a contravention of the WHS Act had occurred or was occurring. Whether that reasonable suspicion existed was to be determined objectively. If that reasonable suspicion existed, the WHS entry permit holder was entitled to consult with relevant workers about the suspected contravention."]
[]
["119 N/A","All harmonised jurisdiction except for South Australia have not omitted s 119 from their Acts. It was omitted by the Work Health and Safety Amendment Bill in August 2016  (which also inserted ss 117(3)-(8)).  The amendments were made following the introduction of the Qld WHS Act in 2011, which contained similar requirements. However, Qld have subsequently repealed the relevant provisions, taking its law back to the original model provision. \n\nUnder the jurisdiction's WHS Acts there is no obligation on the WHS entry permit holder to provide notice before enquiring into suspected contraventions. Under s 119 entry permit holders must provide notice of entry as soon as is reasonably practicable after entering a workplace (with some exceptions). "]
["120 Entry to inspect employee records or information held by another person\n(1) This section applies if a WHS entry permit holder is entitled under section 117(1) and (2) to enter a workplace to inquire into a suspected contravention of this Act.\n(2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of:\n(a) employee records that are directly relevant to a suspected contravention; or\n(b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking.\n(3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking.\n(4) The notice must comply with the regulations.\n(5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.\nNote\nThe use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.","All harmonised jurisdiction have not varied subsection 120(1) to reflect amendments made by the Work Health and Safety Amendment Bill iIn August 2016 subsection 120(1) was amended under the Work Health and Safety Amendment Bill. The amendment only resulted in a slight variation to subsection 120(1) aka adding reference to ss 117(1 and (2) rather than just s 117. The amendments were made following the introduction of the Qld WHS Act in 2011, which contained similar requirements. \n\nNo jurisdiction has implemented these amendments.\n"]
[null,null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act has deleted references to specific subsections of section 117, instead referring to the section as a whole.  It has also inserted a new subsection (6) and deleted the note found in the model Act.  \n\nSimilar to s 118, the new s 120(6) provides that the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder)."]
["Division 3 Entry to consult and advise workers"]
["121 Entry to consult and advise workers\n(1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions.\n(2) A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk."]
["122 Notice of entry\n(1) Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking.\n(2) The notice must comply with the regulations.\n(3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry",null,null,null,null,null,null,null,null,null,"This section differs from the model WHS Act because the WHS entry permit holder is also required to give notice to the person with management or control of the workplace in addition to the PCBU."]
["Division 4 Requirements for WHS Entry Permit Holders"]
["123 Contravening WHS entry permit conditions\nA WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.\nWHS civil penalty provision.\nMaximum penalty: $20 000.\n\n","As part of the suite of amendments to the model WHS Act in 2016, the penalty in s 123 was increased from $10,000 to $20,000. The only jurisdiction to adopt this amendment was SA. The Cth, NSW, the ACT, the NT and Tasmania have all retained the $10,000 penalty as it appeared in the initial version of the model WHS Act. Queensland has adopted its own approach of penalty units, assigning a penalty of 100 penalty units. ",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Tasmania varies this provision by setting the maximum penalty at $10,000. \n\nIn accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
[]
[null,"In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty for contravention of is 100 penalty units. The Queensland Act only provides for one penalty. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.\n"]
["124 WHS entry permit holder must also hold permit under other law\nA WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act [or the relevant State or Territory industrial law].\nWHS civil penalty provision.\nMaximum penalty: $10 000.\nNote\nSee the jurisdictional note in the Appendix.","Section 124 of the Commonwealth WHS Act omits [or the relevant State or Territory law] which appears in s 124 of the model WHS Act.\n\nIn accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the [relevant State or Territory industrial law] for s 124.\n\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The ACT Act omits the reference to [or relevant State or Territory industrial law] in s 114 as it is only covered by the Fair Work Act 2009.",null,null,"The Queensland Act specifies the industrial officer authority as the [relevant State or Territory industrial law]. \n\nIn accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 124 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act. Section 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA). \n\nThe SA Act has inserted s 124(2), which provides that a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 (SA) will be taken to hold an entry permit under that Act for the purposes of s 124(1).  ",null,null,"The NT Act omits the reference to [or relevant State or Territory industrial law] in s 114 as it is only covered by the Fair Work Act 2009.",null,null,"The Tas Act varies the wording of s 124. Rather than referring to the a relevant state or Territory industrial law the Act refers to an entitlement to enter a workplace pursuant to s 77 of the Industrial Relations Act 1984 . Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984.  Similar variations are made in ss 124, 131, 127, 138, and 150.\n\nIn accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["125 WHS entry permit to be available for inspection\nA WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under Division 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request.\nWHS civil penalty provision.\nMaximum penalty: $10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 125 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["126 When right may be exercised\nA WHS entry permit holder may exercise a right under Division 2 or 3 of this Part only during the usual working hours at the workplace.\nWHS civil penalty provision.\nMaximum penalty: $10 000.","In accordance with the additional jurisdictional notes the Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 126 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["127 Where the right may be exercised\nA WHS entry permit holder may exercise a right of entry to a workplace only in relation to:\n(a) the area of the workplace where the relevant workers work; or\n(b) any other work area that directly affects the health or safety of those workers."]
["128 Work health and safety requirements\nA WHS entry permit holder must not exercise a right of entry to a workplace under Division 2 or 3 of this Part unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with:\n(a) any work health and safety requirement that applies to the workplace; and\n(b) any other legislated requirement that applies to that type of workplace.\nWHS civil penalty provision.\nMaximum penalty: $10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s128 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["129 Residential premises\nA WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes.\nWHS civil penalty provision.\nMaximum penalty: $10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 129 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["130 WHS entry permit holder not required to disclose names of workers\n(1) A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace.\n(2) A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker."]
["Division 5 WHS Entry Permits"]
["131 Application for WHS entry permit\n(1) A union may apply to the authorising authority for the issue of a WHS entry permit to a person who is an official of the union.\n(2) The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she:\n(a) is an official of the union; and\n(b) has satisfactorily completed the prescribed training; and\n(c) holds, or will hold, an entry permit under:\n(i) the Fair Work Act; or\n(ii) [the relevant State or Territory industrial law].\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the the Commonwealth WHS Act omits the reference to [the relevant State or Territory industrial law] in s 131(2)(c) and amends its numbering accordingly.",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the [relevant State or Territory industrial law] for s 131.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to 'regulator'.\n\nThe Red Tape Reduction Legislation Amendment Act 2016 removed references to 'statutory declaration' in subsection (2) (and a number of other ACT Acts). Rather the the application for a WHS entry permit is only required to include a 'statement' by the applicant. \n\nSection 131 includes a note that states that it is an offence under part 3.4 of the Criminal Code 2002 (ACT) to make a false or misleading statement. \n\n",null,null,"In accordance with the jurisdictional note for section 4, Queensland does not use the term 'authorising authority'. Instead it makes reference to the Industrial Registrar.\n\nParagraph 2 (c) is not broken into subparagraphs. The Queensland Act specifies the industrial officer authority as the [relevant State or Territory industrial law].",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA). \n\nThe SA Act has inserted s 131(3), which provides that for the purposes of s 131(2)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 (SA) will be taken to hold an entry permit under that Act.",null,null,"In accordance with the jurisdictional note for section 4, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term in subsection (1) with  “regulator”.\n\nAs the NT is only covered by the Fair Work Act 2009 the ACT Act does not include subparagraph 131(2)(ii). \n\n",null,null,"In accordance with the jurisdictional notes for sections 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nThe Tasmanian Act varies the wording of s 131. Rather than referring to the a relevant state or Territory industrial law the Act refers to an entitlement to enter a workplace pursuant to s 77 of the Industrial Relations Act 1984 . Note that Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984.  Similar variations are made in s 150."]
["132 Consideration of application\nIn considering whether to issue a WHS entry permit, the authorising authority must take into account:\n(a) the object of this Act; and\n(b) the object of allowing union right of entry to workplaces for work health and safety purposes.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and has replaced it with the term 'regulator'.",null,null,"In accordance with the jurisdictional notes to s 4 and Part 7 the ACT does not use the term 'authorising authority' and replaces it with a reference to \"industrial registrar\".",null,null,null,null,null,"In accordance with the jurisdictional notes for section 4 and Part 7 the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term with “regulator”.",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”."]
["133 Eligibility criteria\nThe authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official:\n(a) is an official of the union; and\n(b) has satisfactorily completed the prescribed training; and\n(c) holds, or will hold, an entry permit under:\n(i) the Fair Work Act; or\n(ii) [the relevant State or Territory industrial law].\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth WHS Act omits the reference to [the relevant State or Territory industrial law] in s 133(c) and amends its numbering accordingly.",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the [relevant State or Territory industrial law] for s 133.",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the ACT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  “regulator”.\nAs the ACT is only covered by the Fair Work Act 2009 the ACT Act does not include s 133(2)(ii). \n\n",null,null,"Paragraph 2 (c) is not broken into subparagraphs. The Queensland Act specifies the industrial officer authority as the [relevant State or Territory industrial law].",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA). \n\nThe SA Act has inserted s 133(2),which provides that for the purposes of s 133(1)(c)(ii), a person who has a right of entry to a workplace under s 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act.",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  “regulator”.\n\nAs the NT is only covered by the Fair Work Act 2009 the ACT Act does not include s 133(2)(ii). \n\n",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”. The section also contains minor drafting variations.\n\nNote that Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984."]
["134 Issue of WHS entry permit\nThe authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and has replaced it with the term 'regulator'.",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the Qld Act does not use the term 'authorising authority' and replaces it with a reference to \"industrial registrar\".\n\nSection 134 of the Queensland Act also inserts s 134(2), which allows persons dissatisfied with the decision of the Registrar to appeal under Ch 9 of the Industrial Relations Act 1998. \nWhile this is not provided for in other jurisdictions' WHS Acts, there could be other Acts within each jurisdictions that provide for appeal mechanisms.",null,null,null,null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  “regulator”.",null,null,"In accordance with the jurisdictional notes for sections 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”."]
["135 Conditions on WHS entry permit\nThe authorising authority may impose conditions on a WHS entry permit.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and has replaced it with the term 'regulator'.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to \"industrial registrar\".",null,null,null,null,null,"In accordance with the jurisdictional note for s 4, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  “regulator”.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”."]
["136 Term of WHS entry permit\nA WHS entry permit has effect for a term of 3 years from the date it is issued."]
["137 Expiry of WHS entry permit\n(1) Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur:\n(a) at the end of the term of the WHS entry permit;\n(b) at the end of the term of the entry permit held by the WHS entry permit holder under:\n(i) the Fair Work Act; or\n(ii) [the relevant State or Territory industrial law];\n(c) when the permit holder ceases to be an official of the union that applied for the permit;\n(d) the union that applied for the permit ceases to be:\n(i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or\n(ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the [relevant State or Territory industrial law].\nNote\nSee the jurisdictional note in the Appendix.\n(2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires.","The  Commonwealth WHS Act omits the reference to \"the relevant State or Territory industrial law\" in s 137(b) and amends its numbering accordingly.\n\nThe Commonwealth WHS Act also does not include s 137(d)(ii) from the model WHS Act and amends its numbering accordingly.",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the \"relevant State or Territory industrial law \"for s 137.",null,null,"As the ACT is only covered by the Fair Work Act 2009 the ACT Act does not include sh 137(1)(b)(ii).\n\nThe ACT Act does not include s 137(1)(d)(ii) given that the ACT is only covered by the Fair Work (Registered Organisations) Act 2009. ",null,null,"Paragraph (1)(b) is not broken into subparagraphs. The Queensland Act specifies the industrial officer authority as the [relevant State or Territory industrial law] in paragraph (1)(b).\n\n The Industrial Relations Act 2016 is specified as the  [relevant State or Territory industrial law] in s 137(d)(ii). ",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA) at  s 137(1)(b)(ii).\n\nIt also adds that a WHS entry permit expires when a person ceases to have a right of entry under s 140 of the Fair Work Act 1994 (SA).",null,null,"As the NT is only covered by the Fair Work Act 2009 the NT Act does not include s 137(1)(b)(ii).\n\nThe NT Act does not include s 137(1)(d)(ii) given that the ACT is only covered by the Fair Work (Registered Organisations Act 2009. ",null,null,"The Tasmanian Act has varied subparagraph (1)(b) and inserted subparagraph 1(ba). \n\nUnder subparagraph (1)(b) of the model WHS Act, a WHS entry permit will expire if either the permit holder's Fair Work Act WHS entry permit or entry permit issued under the relevant State or Territory law reaches the end of its term.\n\nIn contrast the effect of subparagraphs (1)(b) and (ba) of the Tasmanian Act, is that a WHS entry permit will not expire if only one of the entry permits issued under either the Fair Work Act 2009 or Industrial Relations Act 1986 has reached the end of its term. This means that a WHS entry permit will only expire if both he Fair Work Act entry permit and the Industrial Relations Act entry permit have reached the end of their terms. \n\nNote that Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984. "]
["138 Application to revoke WHS entry permit\n(1) The following persons may apply to the authorising authority for a WHS entry permit held by a person to be revoked:\n(a) the regulator;\n(b) the relevant person conducting a business or undertaking;\n(c) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this Part;\n(d) any other person affected by the exercise or purported exercise of a right under this Part by a WHS entry permit holder.\nNote\nSee the jurisdictional note in the Appendix.\n(2) The grounds for an application for revocation of a WHS entry permit are\n(a) that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or the [relevant State or Territory industrial law]; or\nNote\nSee the jurisdictional note in the Appendix.\n(b) that the permit holder has contravened any condition of the WHS entry permit; or\n(c) that the permit holder has acted or purported to act in an improper manner in the exercise of any right under this Act; or \n(d) in exercising or purporting to exercise a right under this Part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace.\n(3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned.\n(4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application.","In accordance with the jurisdictional note the  Commonwealth WHS Act omits the reference to \"the relevant State or Territory industrial law\" in s 138(2)(a).",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the [relevant State or Territory industrial law] for s 138.",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the ACT does not use the term 'authorising authority' and has replaced it with the term 'regulator'.\n\nFor the purposes of s 138 this means that it is the regulator, rather than an authorising authority (such as a court or tribunal), who will decide an application to revoke a WHS entry permit. As such the ACT Act has omitted s 138(1)(a). \n\nThe ACT Act has placed a note beneath subsection (1) that states that a regulator has the power to reverse or change their decision, exercisable in the same way and subject to the same conditions as the power to make the decision (being section 134) - see Legislation Act (ACT) s 180. \n\nAs the ACT is only covered by the Fair Work Act 2009 (Cth) the ACT Act does not include a reference to a relevant State or Territory law in s 138(2).\n\nThe ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to \"commission\" (being the Queensland Industrial Relations Commission).\n\nThe Queensland Act specifies the industrial officer authority as the [relevant State or Territory industrial law] in s 138(2)(a) .\n\nApplications to revoke work health and safety entry permits have the same right of appeal under Ch 9 of the Industrial Relations Act 1999 (s 140(3) of the Queensland WHS Act). ",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA).\n\nIt has also added a further provision in subsection (2)(a) to state that a ground for application for revocation of a WHS entry permit is that the person is no longer eligible to exercise a right of entry under s 140 of the Fair Work Act 1994 (SA). ",null,null,"In accordance with the jurisdictional note for s 138, the ACT does not use the term 'authorising authority' but instead uses the term “regulator”.\n\nThe effect is  that it is the regulator rather than an authorising authority (such as a court or tribunal) who will decide an application to revoke a WHS entry permit. \nThe effect is  that it is the regulator rather than an authorising authority (such as a court or tribunal) who will decide an application to revoke a WHS entry permit. \nGiven this, the NT Act does not include s 139(1)(a). Note that the Regulator is able to decide on their own initiative to revoke a WHS entry permit, as set out in s 140(1). \n\nAs the NT is only covered by the Fair Work Act 2009 the ACT Act does not include a reference to a relevant State or Territory law in s 138(2)(a).\n\n",null,null,"In accordance with the jurisdictional notes for sections 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nThe effect is  that it is the regulator rather than an authorising authority (such as a court or tribunal) who will decide an application to revoke a WHS entry permit. As such, the Tasmanian Act does not include s 138(1)(a). Note that the Regulator is able to decide on their own initiative to revoke a WHS entry permit, as set out in s 140(1) (see also s 22A of the Tasmanian Acts Interpretation Act 1931).  Tasmania have added s 138(2)(ab) that includes the grounds for revocation of WHS entry permits where permit holders are no longer entitled to enter workplaces pursuant to s 77 of the Industrial Relations Act 1984, which is the relevant State or Territory industrial law for the purposes of this section.  \n\nNote that Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984."]
["139 Authorising authority must permit WHS entry permit holder to show cause\n(1) If, on an application under section 138, the authorising authority is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the authorising authority must:\n(a) give the WHS entry permit holder written notice (a show cause notice); and\n(b) if the authorising authority considers it appropriate, suspend the operation of the WHS entry permit until the authorising authority decides the application for revocation.\n(2) The show cause notice must:\n(a) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the authorising authority written reasons explaining why the WHS entry permit should not be revoked; and \n(b) be accompanied by a summary of the reasons for the application; and\n(c) if applicable, be accompanied by a notice of suspension of the permit.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with the term 'regulator'. \n\nThe ACT Act has amended s 139(1) by narrowing the grounds on which the regulator may give a show cause notice to just those in s 138(2)(a) - that is, that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, the Fair Work Act 2009 (Cth) or the Workplace Relations Act 1996 (Cth).\n\nThe effect of this change is that the ACT regulator does not have to give a show cause notice for any of the other grounds listed in s 138(2)(b)-(d). The regulator also cannot suspend the operation of the permit until they have decided the application for revocation on those grounds.\n\nIt is unclear whether this is a purposeful change or a drafting error - the change is not discussed in the EM or 2nd reading speech. ",null,null,"In accordance with the jurisdictional notes for sections 4 and Part 7, the Qld Act does not use the term 'authorising authority' and replaces it with a reference to \"commission\" (being the Queensland Industrial Relations Commission).",null,null,null,null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, the NT does not use the term 'authorising authority' and replaces it the term  \"regulator\". ",null,null,"In accordance with the jurisdictional notes for section 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”."]
["140 Determination of application\n(1) If the authorising authority is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make 1 or more of the following orders:\n(a) an order imposing conditions on the WHS entry permit;\n(b) an order suspending the WHS entry permit;\n(c) an order revoking the WHS entry permit;\n(d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked;\n(e) an order imposing any alternative action the authorising authority considers appropriate.\n(2) In deciding what action to take under subsection (1), in relation to a person, the authorising authority must take into account:\n(a) the seriousness of any findings of the authorising authority having regard to the object of this Act; and\n(b) any other matters the authority considers relevant.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with the term 'regulator'. \n\nAs such it is the regulator (and not a court or tribunal as an authorising authority) that decides to issue and revoke a WHS entry permit under the ACT Act. ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to \"commission\" (being the Queensland Industrial Relations Commission).\n\nThe Queensland Act also inserts subsection (3), which enables a person dissatisfied with a decision of the commission to appeal under the Industrial Relations Act 2016 chapter 11, part 6.  While this is not provided for in other jurisdictions' WHS Acts, there could be other Acts within each jurisdictions that provide for appeal mechanisms.\n",null,null,null,null,null,"In accordance with the jurisdictional note for s 4, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  “regulator”. As such it is the regulator (and not a court or tribunal as an authorising authority) that decides to issue and revoke a WHS entry permit. ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nSection 140(1) of the Tasmanian Act differs from that of the Model Act in light of the regulator performing the role of the authorising authority.  In addition to making certain orders upon application under s 138(1), the regulator can also make orders on his or her own initiative. That is the regulator has the ability to revoke a WHS entry permit on his or her own motion without an application before them. "]
["Division 6 Dealing with disputes"]
["141 Application for assistance of inspector to resolve dispute\nIf a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute."]
["141A \nN/A",null,null,null,null,null,null,null,null,null,"The Work Health and Safety Amendment and Other Legislation Act 2017 inserted s 141A which provides for powers that can be exercised by an\ninspector who is asked to assist in resolving a dispute about a right of entry, or purported right of entry, under part 7, division 2 or 3, or disputes about whether notice requirements under s 119 or 122 have been complied with. A note informs the reader that the section does not apply if the dispute is about the rights of a permit holder while at the workplace under division 2 or 3.  \nThe inspector may decide whether the WHS entry permit holder has a valid right of entry under division 2 or 3, or has complied with notice requirements under ss 119 or 122 and, if the inspector is reasonably satisfied that a right of entry under division 2 or 3 exists, give the person conducting the business or undertaking a direction to immediately allow the WHS entry permit holder to enter the workplace.\n\nA direction by the inspector must state that the inspector is reasonably satisfied the WHS entry permit holder has a right of entry to the workplace under division 2 or 3 and the reasons the inspector is reasonably satisfied about the right to enter.\n\nA maximum penalty of 100 penalty units will apply for failure to comply with a direction."]
["142 Authorising authority may deal with a dispute about a right of entry under this Act\n(1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable).\n(2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration.\n(3) If the authorising authority deals with the dispute by arbitration, it may make 1 or more of the following orders:\n(a) an order imposing conditions on a WHS entry permit;\n(b) an order suspending a WHS entry permit;\n(c) an order revoking a WHS entry permit;\n(d) an order about the future issue of WHS entry permits to 1 or more persons;\n(e) any other order it considers appropriate.\n(4) The authorising authority may deal with the dispute:\n(a) on its own initiative; or\n(b) on application by any of the following to whom the dispute relates:\n(i) a WHS entry permit holder;\n(ii) the relevant union;\n(iii) the relevant person conducting a business or undertaking;\n(iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry;\n(v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder;\n(vi) the regulator.\nNote\nSee the jurisdictional note in the Appendix.\n(5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part.","The Commonwealth WHS Act varies from the model WHS Act in that it has inserted an additional subsection 6, which clarifies that the section applies despite s 595 of the Fair Work Act 2009 (Cth).\n\nSection 595(1) states that the FWC can only deal with a dispute by arbitration if expressly authorised to do so under or in accordance with the Fair Work Act 2009 (Cth). In contrast the model WHS Act enables the FWC (as a authorising authority) to deal with a dispute in the manner it thinks fit including by arbitration. ",null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nAs the regulator is the authorising authority, s 4(vi) has been deleted.",null,null,"In accordance with the jurisdictional notes for sections 4 and Part 7, the Act does not use the term 'authorising authority' and replaces it with a reference to \"commission\" (being the Queensland Industrial Relations Commission).\n\nSection 142 of the Queensland Act also inserts section 142(6) which is not found in the Model Act. Section 142(6) allows appeal under the Industrial Relations Act 2016, chapter 11, part 6.\n",null,null,null,null,null,"In accordance with the jurisdictional note for s 4 and Part 7 the NT does not use the term 'authorising authority' but instead refers to the regulator as the regulator performs all of the functions of the authorising authority. \n\nAs the regulator is the authorising authority, s 4(vi) has been deleted.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nAs the regulator is the authorising authority, s 4(vi) has been deleted."]
[]
["142A\n N/A",null,null,null,null,null,null,null,null,null,"This section enables the commission to review decisions made by an inspector under section 141A. The section applies if the commission is dealing with a dispute under section 142 and an inspector has made a decision under section 141A in relation to the dispute.\n\n If the commission reviews the decision under this section the commission may decide to confirm or vary the decision, set aside the decision and substitute another decision the commission considers appropriate, or set aside the decision and return the matter to the inspector who made it with directions the commission considers appropriate.\n\nA person dissatisfied with the commission’s decision may appeal under the  Industrial Relations Act 2016."]
["143 Contravening order made to deal with dispute\nA person must not contravene an order under section 142(3).\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.\nThe Queensland Act provides that the maximum penalty for contravention of s 143 is 100 penalty units. No distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["Division 7 Prohibitions"]
["144 Person must not refuse or delay entry of WHS entry permit holder\n(1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this Part.\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"Section 144 (2) also includes a note which states: \"Evidential burden - see Criminal Code, s 58\"",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 144 is 100 penalty units.\nNo distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["145 Person must not hinder or obstruct WHS entry permit holder\nA person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace in accordance with this Part.\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 145 is 100 penalty units.\nNo distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace\nA WHS entry permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner.\nWHS civil penalty provision.\nMaximum penalty: $10 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW Act specifies the penalty for a body coroprate is 575 penalty units. This is the same under the model WHS Act (being 5 times the penalty for an individual). \n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 146 is 100 penalty units. \n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["147 Misrepresentations about things authorised by this Part\n(1) A person must not take action:\n(a) with the intention of giving the impression; or\n(b) reckless as to whether the impression is given,\nthat the doing of a thing is authorised by this Part if it is not so authorised.\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty for contravention of s 147 is 100 penalty units.\nNo distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["148 Unauthorised use or disclosure of information or documents\nA person must not use or disclose information or a document obtained under Division 2 of this Part in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless:\n(a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent:\n(i) a serious risk to a person's health or safety; or\n(ii) a serious threat to public health or safety; or\n(b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or\n(c) the use or disclosure is required or authorised by or under law; or\n(d) the person reasonably believes that the use or disclosure is reasonably necessary for 1 or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth):\n(i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;\n(ii) the enforcement of laws relating to the confiscation of the proceeds of crime;\n(iii) the protection of the public revenue;\n(iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;\n(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or\n(e) if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates.\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","In accordance with the additional jurisdictional notes, the Commonwealth WHS Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.The maximum penalty for contravention of s 148 is 100 penalty units.\nNo distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,null,null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["Division 8 General"]
["149 Return of WHS entry permits\n(1) The person to whom a WHS entry permit is issued must return the permit to the authorising authority within 14 days of any of the following things happening:\n(a) the permit is revoked or suspended;\n(b) the permit expires.\nWHS civil penalty provision.\nMaximum penalty: $2000.\n(2) After the end of a period of suspension of a WHS entry permit, the authorising authority must return the WHS entry permit to the person to whom it was issued if:\n(a) the person, or the person's union, applies to the authorising authority for the return of the permit; and\n(b) the permit has not expired.","In accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes, the NSW WHS Act replaces the reference to $2000 with 25 penalty units and $10000 with 115 penalty units. ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.",null,null,"In accordance with the jurisdictional note for s 4, the ACT does not use the term 'authorising authority'. As such it has replaced a reference to the term in subsection (1) with  \"industrial registrar\".\n\nIn accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.. The maximum penalty for contravention of s149 is 20 penalty units. \n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the jurisdictional note for s 4, the NT does not use the term 'authorising authority'. As such it has replaced a reference to the term in subsection (1) with  “regulator”.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nIn accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["150 Union to provide information to authorising authority\nThe relevant union must advise the authorising authority if:\n(a) the WHS entry permit holder resigns from or otherwise leaves the union; or\n(b) the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or the [relevant State or Territory industrial law] (no matter when in force) cancelled or suspended; or \n(c) the union ceases to be:\n(i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or\n(ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the [relevant State or Territory industrial law].\nNote\nSee the jurisdictional note in the Appendix.\nWHS civil penalty provision.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.","The Commonwealth WHS Act has amended the wording of subsection (c) of the model WHS Act, including by deleting s 150(c)(ii) of the model WHS Act. \n\nIn addition, s 150(b) in the Commonwealth WHS Act has replaced the words \"or the [relevant State or Territory industrial law]\" in s 150(b) of the model WHS Act with \"a State or Territory industrial law\".\n\nIn accordance with the additional jurisdictional notes the  Commonwealth WHS Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW Act specifies the Industrial Relations Act 1996 as the [relevant State or Territory industrial law] for s 150.\n\nIn accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nAs the ACT is only covered by the Fair Work (Registered Organisations) Act 2009 the ACT Act does not include a reference to a relevant State or Territory law in s 150(c)(ii).",null,null,"In accordance with the jurisdictional note for s 4, the ACT does not use the term 'authorising authority'. As such it has replaced a reference to the term with  \"industrial registrar\".\n\nSection 150(b) of the Queensland Act replaces the reference to [relevant State or Territory industrial law] with industrial officer authority in s 150(b) and Industrial Relations Act 2016 s 150(c)(ii).\n\nIn accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.The maximum penalty for contravention of s 150 is 50 penalty units.\nNo distinction is made between a contravention by a person versus a body corporate, as is provided for in the Model Act.",null,null,"The Act does not use the defined term 'relevant State or Territory industrial law', instead replacing it with express references to the Fair Work Act 1994 (SA) for paragraph (c)(ii).\n\nIt has also added a further provision in paragraph (b) to state that a relevant union must advise the authorising authority if the WHS entry permit holder is no longer eligible to exercise a right of entry under s 140 of the Fair Work Act 1994 (SA). ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nAs the NT is only covered by the Fair Work Act 2009 the NT Act does not include s 150(b)(ii).\n\nThe NT Act does not include s 150(c)(ii) given that the ACT is only covered by the Fair Work (Registered Organisations Act 2009. ",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n\nThe Tasmanian Act does not refer to the a relevant state or Territory industrial law in s 150(b). Instead it inserts paragraph (ba) which provides that the union must advise the regulator if the entry permit holder ceases to be entitled to enter workplaces pursuant to s 77 of the Industrial Relations Act 1984 . Tasmania’s industrial law does not provide for, or require, the issuance of entry permits. Union officials have right of entry (without permits) subject to the conditions of s.77 of the Industrial Relations Act 1984. Similar variations are made in s 131.\n\nIn accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["151 Register of WHS entry permit holders\nThe authorising authority must keep available for public access an up-to-date register of WHS entry permit holders in accordance with the regulations.",null,null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to \"industrial registrar\".",null,null,null,null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, the ACT does not use the term 'authorising authority' and replaces it with a reference to “regulator”.",null,null,"In accordance with the jurisdictional notes for s 4 and Part 7, Tasmania does not use the term 'authorising authority' and replaces it with a reference to “regulator”.\n"]

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[]
[]
[]
[]
[]
["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Functions of a Regulator "]
["152 Functions of regulator\nThe regulator has the following functions:\n(a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;\n(b) to monitor and enforce compliance with this Act;\n(c) to provide advice and information on work health and safety to duty holders under this Act and to the community;\n(d) to collect, analyse and publish statistics relating to work health and safety;\n(e) to foster a co-operative, consultative relationship between duty holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters;\n(f) to promote and support education and training on matters relating to work health and safety;\n(g) to engage in, promote and co-ordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator;\n(h) to conduct and defend proceedings under this Act before a court or tribunal;\n(i) any other function conferred on the regulator by this Act.\nNote\nSee the jurisdictional notes in the Appendix.",null,null,null,null,null,null,"In accordance with the jurisdictional note the ACT has inserted additional regulator functions. Paragraph 152(i) is varied to provide that the regulator has any other function given by the Act or another territory law.  The effect being any other ACT law, not just the WHS act can confer functions on the regulator.\n\nThere is a note which informs the reader that under s 104 of the Legislation Act 2001 a reference to 'Act' includes a reference to instruments made under the Act or applied adopted or incorporated by the Act.",null,null,"The Work Health and Other Legislation Amendment Act 2017 amended s 152 to omit paragraph 152(h) so the regulator does not have the power to conduct or defending proceedings under the WHS Act. Instead the function was transferred to the WHS Prosecutor. The WHS Prosecutor has functions in relation to WHS prosecutions (inspectors with written authorisation will be able to prosecute category 3 offences see s 230). ",null,null,"In accordance with the jurisdictional note SA has inserted additional regulator functions. Paragraph (i) is varied to provide that the regulator has any other function given to it by the SA WHS Act or any other Act.  \n\nThe effect of this provision is that any SA Act, not just the WHS Act, can confer functions on the regulator.",null,null,"In accordance with the jurisdictional note the NT has inserted additional regulator functions. Paragraph 152(i) is varied to provide that the regulator has any other function given by the Act or any other Act.  The effect being any other NT law, not just the WHS Act can confer functions on the regulator.",null,null,"In accordance with the jurisdictional note Tasmania has inserted additional regulator functions. Paragraph 152(ab) provides the regulator has the function to develop implement and review strategies and plans for improving work health and safety. ",null,null,"S & AD Basheer Nominees Pty Ltd v Boland [2018] SASCFC 127 at [24]: The purpose of section 152(a) is to impose on the regulator an obligation to advise the Minister generally as to the operation and effectiveness of the Act in meeting its statutory objects and to make recommendations to the Minister where the regulator considers that amendment to the Act is required to improve its operation and effectiveness. There is no need to imply a wider purpose to the provision as contended by the Appellant that section 152(a) imposed an obligation on the regulator to advise before the institution of a prosecution."]
["153 Powers of regulator\n(1) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.\n(2) Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act.",null,null,null,null,null,null,"Section 153 of the ACT Act does not replicate subsection (1) of the Model Act and retains only subsection (2). A note informs the reader of the effect of s 196 of the Legislation Act 2001 which deals with ancillary powers necessary or convenient to the exercise of a function conferred on an entity by an Act. This is similar to subsection (1) of the model WHS Act.  As such the  effect of s 153 of the ACT Act is substantially the same as s 153 of the Model WHS Act.\n\n"]
["154 Delegation by regulator\n(1) The regulator may, by instrument in writing, delegate to any person a power or function under this Act other than this power of delegation.\nNote\nSee the jurisdictional note in the Appendix.\n(2) A delegation under this section:\n(a) may be made subject to such conditions as the regulator thinks fit; and\n(b) is revocable at will; and\n(c) does not derogate from the power of the regulator to act.","In accordance with the jurisdictional note the Commonwealth provides for local delegation requirements. The regulator may only delegate his power or function (other than the power of delegation) to members of staff who are SES or acting SES employees or an inspector or member of a staff prescribed by regulations. This results in a narrower delegation power than under the model WHS Act.  \n\nSubsection (2) of the Commonwealth Act states that a delegation may be subject to conditions as the regulator thinks fit. This is the same as paragraph (2)(a) of the model WHS Act.\n\n A note refers the reader to the delegation provisions in the Acts Interpretation Act 1901.There is no express power under the Acts Interpretation Act to revoke a delegation at will, as set out in paragraph (2)(b) of the model WHS Act. However action may be taken in reliance upon s 33 of the Acts Interpretation Act. \n\nParagraph 34B(1)(e) of the Acts Interpretation Act has a similar effect to paragraph (2)(c) of the model WHS Act as it provides that delegation does not prevent the regulator from the performance or exercise of a function, duty or power that is delegated. \n\nAs such the delegation power under the ACT Act is similar to that under the model WHS Act. \n\n",null,null,"In accordance with the jurisdictional note NSW provides for local delegation requirements. Under s 154(1) the regulator may only delegate a power or function to an authorised person (other than the power of delegation ). A authorised person is defined in subsection (3) to include a member of staff of the regulator or a person prescribed by the regulations or of a class approved by the regulator.  This variation  results in a narrower delegation power than under the model WHS Act.\n\nSubsection (2) is included in the NSW Act and is not varied.  ",null,null,"In accordance with the jurisdictional note the ACT provides for local delegation requirements. Section 154 provides that the regulator may delegate the regulator's powers and functions under the WHS Act or another Territory law to another person. \n\nA note beneath s 154 refers to Part 19.4 of the Legislation Act (ACT), which sets out the conditions that apply to delegations, including: \n• a delegation must be in writing\n• the power to delegate may not be delegated\n• a delegation may be conditional\n• a delegation may be amended or revoked\n• the delegator may exercise a power or function that has been delegated, despite the delegation.\n\nSubsection (2) of the model Act is omitted from the ACT Act, as these provisions are replaced by part 19.4 of the Legislation Act (ACT). \n\n",null,null,"In accordance with the jurisdictional note Queensland provides for local delegation requirements. Under subsection (1) the regulator may delegate to an inspector, appropriately qualified public service employee or person prescribed under a regulation a function or power under the Act. The provision defines 'appropriately qualified' in subsection (2).\n\nThe Queensland Act does not include provisions set out in subsection (2) of the model WHS Act. However s 27 of the Acts Interpretation Act 1954 provides for the revocation of delegation (s 27A(2)(c)), delegation must be exercised in accordance with the conditions of the delegation (s 27A(4)), provides that a function or power regulated may be performed by the delegator (s 27A(10)).\n\nThere is no provision in the WHS Act (or Acts Interpretation Act) which prevents the delegation of the power to delegate (as set out in subsection (1) of the model WHS Act).",null,null,"In accordance with the jurisdictional note SA provides for local delegation requirements. Subsection (1) provides that the regulator may delegate to any body or person (including a person holding or acting in a office or position of a time being) a power or function under the Act. \n\nUnlike the model Act, there is no prohibition in the SA Act on delegating the power of delegation.  There is no similar prohibition in Acts Interpretation Act 1915 (SA). \n\nThe SA Act has added an additional subsection (3) to provide that a delegated function or power may be further delegated, if the instrument of delegation provides for it.\n\n",null,null,"In accordance with the jurisdictional note NT provides for local delegation requirements. A regulator may delegate to an any of its powers and functions under the Act to a person. \nUnder s 46A of the Interpretation Act 1978 the power to delegate is not to be construed as including the power to delegate the power of delegation (similar to subsection (1) of the model WHS Act). \n\nThere is no subsection (2) in the NT Act. There are no  provisions in the Interpretation Act that have a similar effect to subsection (2) of the model WHS Act."]
["Division 2 Powers of regulator to obtain information"]
["155 Powers of regulator to obtain information\n(1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act.\n(2) The regulator may, by written notice served on the person, require the person to do 1 or more of the following:\n(a) to give the regulator, 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, that information of which the person has knowledge;\n(b) to produce to the regulator, in accordance with the notice, those documents;\n(c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.\n(3) The notice must:\n(a) state that the requirement is made under this section; and\n(b) contain a statement to the effect that a failure to comply with a requirement is an offence; and\n(c) if the notice requires the person to provide information or documents or answer questions:\n(i) contain a statement about the effect of sections 172 and 269; and\n(ii) state that the person may attend with a legal practitioner.\n(4) The regulator must not make a requirement under subsection (2)(c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2)(a) and (b) and has been unable to do so.\n(5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse.\n(7) Section 172 (with any necessary changes) applies to a requirement under this section.","In accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The Work Health and Safety Amendment Act 2018 inserted subsection 155(8) which provides that the regulator has the same power to record answers and evidence given orally following the issue of a notice under s 155. This is the same power an inspector has under s 185A in respect of questions and answers. \nThis amendment reflects recommendation 4 of the Work Health and Safety Act 2011 Statutory Review Report - June 2017. The recommendation was to amend the WHS Act to permit the recording of interviews by the Regulators without consent, subject to the interviewee being given notice that his or her interview is being recorded.\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The ACT Act splits the content in subsection (1) into paragraphs (a) and (b). It does not change the effect of the provision. \n\nA note beneath subsection (1) states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).\n\nThe ACT Act splits the content in subsection (3)(c)(i) into sub-subparagraphs (A) and (B). It does not change the effect of the provision. \n\nA note beanth subsection (2) refers to part 19.5 of the Legislation Act (ACT) for how documents such as notices may be served.\n\nA note beneath subsection (5) states that strict liability applies to the  offence (section 12A). A  note beneath subsection (6) refers to s 58 of the Criminal Code 2002 (ACT) in relation to 'evidential burden'. ",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 100 units . No distinction is made between individuals and body corporates unlike the model WHS Act.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. ",null,null,"Perilya Limited v Nash [2015] NSWSC 706: An appeal to the NSW Supreme Court from a decision that a company failed to comply with two notices issued under s 155 of the NSW WHS Act.  The notices related to the death of a worker at a mine at Broken Hill in New South Wales that was operated by Perilya. The notices sought production of documents from Perliya’s head office in Perth. The Supreme Court held that the s 155 notices issued by the New South Wales regulator were valid. In the circumstances, the regulator’s power to issue a notice to obtain information under s 155 the NSW WHS Act was not limited by state borders. In deciding whether the regulator could issue the notice, the court did not consider the fact that the company is registered and has its head office in Western Australia as decisive considerations. The documents being sought in the notice were relevant to compliance with the NSW WHS Act."]
[]
["155A\nN/A",null,null,null,"The Work Health and Safety Amendment Act 2018 inserted s 155A which provides for service of a s 155 notice outside of NSW.  The provision makes it expressly clear that the power to require information evidence and documents applies  to persons and matters outside NSW.  This amendment reflects recommendation 1 of the Work Health and Safety Act 2011 Statutory Review Report - June 2017. The report recommended the Government consider amending the WHS Act to authorise extraterritorial application of the WHS Act to the extent the State's legislative powers allows, including to obtain records and issue notices outside of NSW. \n\nBefore this amendment, the NSW decision of Perilya Limited v Nash [2015] NSWSC 706 found there is no restriction on the regulator's power to issue a notice to obtain documents in another jurisdiction providing the requirements of s 155 are satisfied. \n\n"]
["155B \nN/A",null,null,null,"The Work Health and Safety Amendment (Review) Act 2020 inserted s 155B which further specifies how a written notice served on a person under s 155(2) may be served. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Appointment of Inspectors "]
["156 Appointment of inspectors\nThe regulator may, by instrument, appoint any of the following as an inspector:\n(a) a public servant;\n(b) an employee of a public authority;\n(c) the holder of a statutory office;\n(d) a person who is appointed as an inspector under a corresponding WHS law;\n(e) a person in a prescribed class of persons.\nNote\nSee the jurisdictional notes in the Appendix.","In accordance with the jurisdictional note the Commonwealth Act provides that the regulator may, by instrument, appoint any of the following as an inspector:\n(a) a member of staff of the regulator;\n(b) a person who is appointed as an inspector under a corresponding WHS law of a State; \n(c) a person in a prescribed class of persons.",null,null,"In accordance with the jurisdictional note to include local provisions to ensure appropriate arrangements are made, NSW does not include paragraph (a). The provision is also amended to include a reference to an 'officer'  as well as an employee of a public authority.\n\nThe NSW Act does not include the note at the end of section 156.\n",null,null,"The ACT Act removes the words 'by instrument' from section 156. It also adds two notes beaneath the provision to explain the process for making appointments under the Legislation Act (ACT). \n",null,null,"In accordance with the jurisdictional note, the Qld Act replaces the term 'public servant' with the term 'public service employee'. \n\nThe Qld Act omits 'a person in a prescribed class of persons' and replaces it with 'a person of a class prescribed under a regulation' at s 156(1)(e).\n\nThe Qld Act adds subsection 156(2), which allows appointment of a person who is an inspector under a corresponding WHS law to be made under the Public Service Act 2008 (QLD).",null,null,"In accordance with the jurisdictional note, the SA Act replaces 'public servant' with 'public sector employee under the Public Sector Act 2009' (SA) in subsection (1)(a). \n\nThe SA Act omits subsection (1)(b) of the model Act, as employees of a public authority are covered by the SA Act definition in subsection (1)(a) above. \n\nThe SA Act has added authorised officers along with inspectors as persons who can be appointed under a corresponding WHS law under subsection (1)(c). The addition of authorised officers captures persons exercising powers under the Petroleum and Geothermal Energy Act 2000 (SA), which is a correspoding WHS law under the SA Act. \n\nThe SA Act has inserted subsection (2), which deems inspectors/authorised officers under the following Acts to be appointed as WHS inspectors under the SA WHS Act:\n- Mines and Works Inspection Act 1920 (SA)\n- Offshore Minerals Act 2000 (SA)\n- Petroleum and Geothermal Energy Act 2000 (SA)\n- Petroleum (Submerged Lands) Act 1982 (SA)\n- any other person who may exercise powers under an Act specified by the SA WHS regulations",null,null,"In accordance with the jurisdictional note the NT Act replaces 'public servant' with 'a public sector employee' in s 156(a).",null,null,"The Tasmanian Act varies section 156 in accordance with the jurisdictional note. Subsection 156(1)  provides that a regulator may appoint a State Service officer/employee (a person appointed and subject to the State Service Act 2000 (TAS)), in accordance with the State Service Act 2000 (TAS). \nSubsection 156(2) enables the regulator by certificate to certify \n- an employee of a public authority, \n-a holder of a statutory office\n- a person appointed as an inspector under a corresponding WHS and \n- a person in a prescribed class of person to perform specified functions and have specified powers of an inspector.  \n\nThe Tasmanian Act also introduces subsection 156(3), which provides that a person appointed under subsection 156(1) may hold the office of inspector in addition to their State Service employment.\n"]
["157 Identity cards\n(1) The regulator must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed by the regulations.\n(2) An inspector must produce his or her identity card for inspection on request when exercising compliance powers.\n(3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable.\nNote\nSee the jurisdictional notes in the Appendix.",null,null,null,"The NSW Act does not include the note at the end of s 157.",null,null,"In accordance with the jurisdiction note, the ACT has included local provisions for identity cards. In addition to the person's name and indication that a person is an inspector, an identity card must also include  a recent photograph of the person and \nthe card's date of issue and expiry.\n\nThe ACT Act splits the content of subsection (1) into paragraphs (a) to (e). This is also consistent with the jurisdictional note. \n\n",null,null,"Subsection 157(2) of the Qld Act does not correspond with the model Act. The model WHS Act requires an inspector to produce their identity card on request. \nIn comparison the Qld Act requires an inspector to  produce their identity card prior to exercising a compliance power, or have their identity card clearly visible while exercising a compliance power.\nIf it is not practicable to comply with subsection (2) an inspector must produce their identity card at the first reasonable opportunity (s 157(3)). \n\nIn accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty unit. The Qld Act imposes a penalty of 40 penalty units for failure to return an identity card at s 157(4). There is no penalty under the model Act.\nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit."]
["158 Accountability of inspectors\n(1) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector's functions.\n(2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter.",null,null,null,null,null,null,"The ACT Act splits the content of subsection (2) into paragraphs (a) and (b). It does not change the effect of the provision. ",null,null,"The Qld Act includes a note that failure to comply with s 158 may result in action by the regulator under s 159 of the Qld Act, or under the Public Service Act 2008 (QLD)."]
["159 Suspension and ending of appointment of inspectors\n(1) The regulator may suspend or end the appointment of an inspector.\n(2) A person's appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector."]
["Division 2 Functions and powers of inspectors"]
["160 Functions and powers of inspectors\nAn inspector has the following functions and powers under this Act:\n(a) to provide information and advice about compliance with this Act;\n(b) to assist in the resolution of:\n(i) work health and safety issues at workplaces; and\n(ii) issues related to access to a workplace by an assistant to a health and safety representative; and \n(iii) issues related to the exercise or purported exercise of a right of entry under Part 7;\n(c) to review disputed provisional improvement notices;\n(d) to require compliance with this Act through the issuing of notices;\n(e) to investigate contraventions of this Act and assist in the prosecution of offences;\n(f) to attend coronial inquests in relation to work-related deaths and examine witnesses.\nNote\nSee the jurisdictional note in the Appendix.","Subsection 160(f) of the Commonwealth Act does not correspond with the model Act. Subsection 160(f) instead provides for inspectors to monitor compliance with this Act. \n\nThe functions and powers of inspectors under the Commonwealth Act are narrower than those under the Model Act, as inspectors do not have the power to attend coronial inquests. Section 187 of the Model Act - which deal with the attendance by inspectors at a coronial inquest - is also omitted from the Commonwealth Act.",null,null,null,null,null,"Section identified headings of referred parts of Act ",null,null,"In accordance with the jurisdictional note the Qld Act omits paragraph 160(f) as s 36 of the Coroners Act 2003 (QLD) covers the right to appear at coronial inquests. \nThe Qld Act also provides that an inspector has  'any other function or power conferred on the inspector under this Act'. \n",null,null,"In accordance with the jurisdictional note the SA Act omits paragraph (f) of the model Act, as the SA coronial inquests are governed by the Coroners Act 2003 (SA) (see note for section 187 below).  \n\nThe SA Act has inserted a new paragraph (f) that states that an inspector has any other function or power conferred on them by the regulations. There are currently no additional powers set out in the SA WHS Regs. \n\n",null,null,"The NT Act adds 'if permitted under section 40(3) of the Coroners Act 1993' to paragraph 160(f).\n\nSection 40(3) of the Coroners Act 1993 (NT) reads:\n\n'A person who, in the opinion of the coroner, has a sufficient interest may, at an inquest, appear or be represented, call and examine or cross-examine witnesses, and make submissions.'\n\nThe NT Act inserts s 160(g) to provide that inspectors also have the power to monitor compliance with the NT Act.\n",null,null,"In accordance with the jurisdictional note the Tasmanian Act omits paragraph 160(f). According to the Clause Notes this is to avoid any conflict with the Coroners Act 1995 (TAS)."]
["161  Conditions on inspectors' compliance powers\nAn inspector's compliance powers are subject to any conditions specified in the instrument of the inspector's appointment."]
["162 Inspectors subject to regulator's directions\n(1) An inspector is subject to the regulator's directions in the exercise of the inspector's compliance powers.\n(2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.",null,null,null,null,null,null,null,null,null,"The QLD Act adds s 162(3) which requires the regulator issue directions in a way that minimises adverse effects on privacy, confidentiality and security of persons and businesses.\n\nThe QLD Act uses 'stated' instead of 'specified' at s 162(2)."]
["Division 3 Powers relating to entry "]
["Subdivision 1 - General powers of entry "]
["163 Powers of entry\n(1) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace.\n(2) An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace.\n(3) If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately.\n(4) An inspector may enter any place if the entry is authorised by a search warrant.\nNote\nAn inspector may enter residential premises to gain access to a workplace (see section 170(c))."]
["164 Notification of entry\n(1) An inspector may enter a place under section 163 without prior notice to any person.\n(2) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry:\n(a) the relevant person conducting a business or undertaking at the workplace;\n(b) the person with management or control of the workplace;\n(c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace.\n(3) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay.\n(4) In this section relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry.",null,null,null,null,null,null,null,null,null,"The Qld Act includes s 164(2)(d) which requires an inspector to notify any work health and safety representative for the business or undertaking about their entry."]
["165 General powers on entry\n(1) An inspector who enters a workplace under section 163 may do all or any of the following:\n(a) inspect, examine and make inquiries at the workplace;\n(b) inspect and examine anything (including a document) at the workplace;\n(c) bring to the workplace and use any equipment or materials that may be required;\n(d) take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings);\n(e) take and remove for analysis a sample of any substance or thing without paying for it;\n(f) require a person at the workplace to give the inspector reasonable help to exercise the inspector's powers under paragraphs (a) to (e);\n(g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act.\nNote\nSee the jurisdictional notes in the Appendix.\n(2) A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse.","Subsection 165(e) of the Commonwealth Act omits the words 'without paying for it' in accordance with the jurisdictional note. \n\n In accordance with the additional jurisdictional notes the  Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"Section 165(1) of the NSW Act replaces the reference to 'section 163' to 'this Division.' This amendment does not change the practical operation of the model provision. \n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units.  ",null,null,"Section 165(1) of the ACT Act replaces 'all or any of the following' with '1 or more of the following'. This is a minor/technical change, introduced by sch 3 item 3.224 Statute Law Amendment Act 2012 (ACT) to update the language used in accordance with legislative drafting practices in the ACT. It does not change the effect of the provision. \n\nA note beneath subsection (2) states that strict liability applies to the offence (s 12A).\n\nA note beneath subsection (3) refers to s 58 of the Criminal Code 2002 (ACT) in relation to 'evidential burden'.\n",null,null,"The QLD Act replaces 'under section 163' with 'under this division'.  The effect of this provision is that an inspector may also exercise these powers when entering the premises under a warrant. \n\nIn accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The QLD Act imposes a maximum penalty of 100 penalty units in s 165(2). This does not distinguish between individuals and bodies corporate.\n\nSection 36 of the Acts Interpretation Act 1954 and s 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'."]
["165A N/A","Section 165A deals with an inspector's power to operate electronic equipment on the premises to determine whether it contains information relevant to compliance with the Commonwealth Act. This variation is permitted by a jurisdictional note which states that the Commonwealth and any other jurisdiction may include provisions in Division 3 of Part 9 to deal with the operation and seizure of electronic equipment during an entry and search of a place. "]
["165B N/A","Section 165B allows the inspector to secure equipment to allow time for expert assistance to be obtained to operate the electronic equipment, in certain circumstances. This variation is permitted by a jurisdictional note which states that the Commonwealth and any other jurisdiction may include provisions in Division 3 of Part 9 to deal with the operation and seizure of electronic equipment during an entry and search of a place. "]
["166 Persons assisting inspectors\n(1) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 163 to assist the inspector if the inspector considers the assistance is necessary.\n(2) The assistant:\n(a) may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise compliance powers; but\n(b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant.\n(3) Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector.",null,null,null,null,null,null,null,null,null,"At subsection 166(1) the QLD Act omits 'sections 163' and replaces it with 'section 165'. This is unlikely to alter the effect of the model provision. "]
["Subdivision 2 Search Warrants\nSee jurisdictional note in appendix"]
["167 Search warrants\n(1) An inspector may apply to a magistrate for a search warrant for a place.\n(2) The application must be sworn and state the grounds on which the warrant is sought.\n(3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.\nExample\nThe magistrate may require additional information supporting the application to be given by statutory declaration.\n(4) The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting:\n(a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and\n(b) the evidence is, or may be within the next 72 hours, at the place.\n(5) The search warrant must state:\n(a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's compliance powers; and\n(b) the offence for which the search warrant is sought; and\n(c) the evidence that may be seized under the search warrant; and\n(d) the hours of the day or night when the place may be entered; and\n(e) the date, within 7 days after the search warrant's issue, the search warrant ends.",null,null,null,"In accordance with the jurisdictional not to Part 9, Division 3 Subdivision 2, the NSW Act has been amended to ensure the search warrant provisions to enable them to operate in the NSW jurisdiction.  \n\nThe term 'magistrate' in ss  167(1) and (2) is replaced with 'authorised officer'. It has the same meaning as in the  Law Enforcement (Powers and Responsibilities) Act 2002 (s 167(4)). \n\nAn inspector may only apply to an authorised officer for a search warrant if they believe on reasonable grounds that a provision of the Act has been or is being or is about to be contravened in or about any premises. This is not a requirement on an inspector under the model WHS Act. Under the model WHS Act, the inspector must state the grounds on which the warrant is sought. \n\nAn authorised person may, if satisfied that there are reasonable grounds for doing so, issue a warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of the Act (s 167(3)). While the requirements on the authorising authority differs from s 167(4) of the model WHS Act, it is unlikely to result in a practical differences. \n\nSubsection 167(3) states the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under s 167. \n\n",null,null,"The ACT Act does not include the example at subsection (3) of the model Act. This was omitted from the ACT Act by the Red Tape Reduction Legislation Amendment Act 2016 (ACT), which removed the requirement for statutory declarations from a number of pieces of legislation. \n\nThe ACT Act includes a note under subsection (4) that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).\n\nThe section includes several changes  to the text, which do not  effect the operation of the model WHS provisions:\n- 'an inspector' replaces 'a stated inspector' (subsection (5)(a))\n- 'with any necessary and reasonable'  replaces 'with necessary and reasonable' (subsection (5)(a))\n- 'warrant is issued' replaces 'warrant is sought' (subsection (5)(b))\n- 'the hours when the place may be entered' replaces 'the hours of the day or night when the place may be entered' (subsection (5)(d))\n- 'within 7 days after the day of the search warrant's issue' replaces 'within 7 days after the search warrant's issue' (subsection (5)(e))\n\nSome of these changes appear to follow the ACT Parliamentary Counsel's Office Words and Phrases Guide (eg limit use of 'any') (http://www.pco.act.gov.au/pages/draftpubstand.htm).",null,null,null,null,null,"In accordance with the jurisdictional note to Part 9, Division 3 Subdivision 2, SA has inserted subsection (6) to ensure the search warrant provisions can operate in its jurisdiction. The subsection allows an inspector, in some circumstances, to apply for a warrant by telephone, fax or other prescribed means and use a form of warrant. As a consequence subsections (2) and (5) are made 'subject to subsection (6)'. \n\nThis is similar to provisions in Queensland and NSW at s 167A.\n\n",null,null,"In accordance with the jurisdictional note the NT Act makes changes to section 167 to ensure the warrant provisions operate in its jurisdiction. The  NT Act replaces 'magistrate' with 'Local Court Judge' in subsection 167(1), and 'Judge' in ss 172(3) and 172(4). This change was introduced by the Local Court (Related Amendments) Act 2016 (NT) following the introduction of the Local Court Act 2015 (NT). This Act established the NT Local Court, which consolidated the NT lower courts and removed the role of magistrate.\n\nThe NT Act also replaces 'must be sworn' with 'must be made on oath' in s 167(2). This does not alter the effect of the model provision and appears to be made to ensure consistency with the Oaths, Affidavits and Declarations Act 2010 (NT).\n\n"]
["s 167A N/A\n",null,null,null,null,null,null,"In accordance with the jurisdictional not to Part 9, Division 3 Subdivision 2, the ACT has inserted section 167A to ensure the search warrant provisions can operate in its jurisdiction.\n\nSection 167A provides that an inspector may in some circumstances apply for a warrant by phone, fax, email, radio or any other form of communication. It also provides that an inspector may use a warrant form where it is not practicable to obtain a written copy of a warrant.\n\n",null,null,"In accordance with the jurisdictional note to Part 9, Division 3 Subdivision 2, Qld has inserted section 167A to ensure the search warrant provisions can operate in its jurisdiction. \n\nSection 167A provides that warrant applications may be made electronically (phone, fax, email, radio, videoconferencing or other electronic communication), and that a duplicate warrant may be used instead of the original warrant.",null,null,null,null,null,null,null,null,"In accordance with the jurisdictional note to Part 9, Division 3 Subdivision 2, Tasmania has inserted section 167A to ensure the search warrant provisions can operate in its jurisdiction. \n\nThis section includes more detail regarding the process for the issuance of of search warrants when issued by telephone or electronic means, for consistency with similar provisions in Tasmania’s Search Warrants Act 1997.\n"]
["168 Announcement before entry on warrant\n(1) Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must:\n(a) announce that he or she is authorised by the warrant to enter the place; and\n(b) give any person at the place an opportunity to allow that entry.\n(2) However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure:\n(a) the safety of any person; or\n(b) that the effective execution of the warrant is not frustrated.",null,null,null,"In accordance with the jurisdictional not to Part 9, Division 3 Subdivision 2, the NSW Act has been amended to ensure the search warrant provisions can operate in the NSW jurisdiction.  Section 168 of the model Act is omitted from the NSW Act . A note is included which states that this provision is not required in NSW.  The Law Enforcement (Powers and Responsibilities) Act 2002, which applies to a search warrant issued under the Act (s167(3)) includes provisions on announcement before entry.",null,null,"The ACT Act inserts the words 'to the place' at the end of s 168(1)(b) so it reads 'give any person at the place an opportunity to allow that entry to the place.' This is likely a variation to reflect drafting  practices."]
["169 Copy of warrant to be given to person with management or control of place\nIf the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must:\n(a) identify himself or herself to that person by producing his or her identity card for inspection; and\n(b) give that person a copy of the execution copy of the warrant.",null,null,null,"In accordance with the jurisdictional not to Part 9, Division 3 Subdivision 2, the NSW Act has been amended to ensure the search warrant provisions can operate in the NSW jurisdiction.  \n\nSection 169 of the model Act is omitted from the NSW Act . A note is included which states that this provision is not required in NSW.  The Law Enforcement (Powers and Responsibilities) Act 2002, which applies to a search warrant issued under the Act (s167(3)) includes provisions on providing a copy of the warrant. ",null,null,"In accordance with the jurisdictional not to Part 9, Division 3 Subdivision 2, the ACT Act  has been amended to ensure the search warrant provisions can operate in the NSW jurisdiction.\n\nParagraph 169(b) is amended to provide the person with management or control of the place a copy of the warrant and a document setting out the rights and obligations of the person'.\n",null,null,"Section 169(2) has been inserted to the Qld Act to clarify that execution copy includes duplicate warrants mentioned in paragraph 167A(5).",null,null,"The SA Act omits the words 'of the execution copy' at paragraph 169(b). This may reflect the fact a Form of Warrant may be completed under subsection 167(6)."]
["s 169A N/A",null,null,null,null,null,null,"Section 169A provides that the occupier may be present while a search is being conducted."]
["Subdivision 3 Limitation on Entry Powers"]
["170 Places used for residential purposes\nDespite anything else in this Division, the powers of an inspector under this Division in relation to entering a place are not exercisable in relation to any part of a place that is used only for residential purposes except:\n(a) with the consent of the person with management or control of the place; or\n(b) under the authority conferred by a search warrant; or \n(c) for the purpose only of gaining access to a suspected workplace, but only:\n(i) if the inspector reasonably believes that no reasonable alternative access is available; and\n(ii) at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought.",null,null,null,null,null,null,"The ACT Act replaces 'any part' with 'a part'. This likely reflects drafting practices (see the ACT Parliamentary Counsel's Office Words and Phrases Guide which recommends limiting the use of 'any'. http://www.pco.act.gov.au/pages/draftpubstand.htm).",null,null,null,null,null,"The SA Act replaces 'any part' with 'a part'. This is a minor drafting variation that does not alter the effect of the model WHS provision. "]
["Subdivision 4 Specific Powers on Entry"]
["171 Power to require production of documents and answers to questions\n(1) An inspector who enters a workplace under this Division may:\n(a) require a person to tell the inspector who has custody of, or access to, a document; or\n(b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period; or\n(c) require a person at the workplace to answer any questions put by the inspector.\n(2) A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document.\n(3) An interview conducted by an inspector under subsection (1)(c) must be conducted in private if:\n(a) the inspector considers it appropriate; or\n(b) the person being interviewed so requests.\n(4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview.\n(5) Subsection (3) may be invoked during an interview by:\n(a) the inspector; or\n(b) the person being interviewed,\nin which case the subsection applies to the remainder of the interview.\n(6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\nNote\nSee sections 172 and 173 in relation to self-incrimination and section 269 in relation to legal professional privilege.\n(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.","In accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The Work Health and Safety (Review) Act 2020 amends s 171(1) to expressly state that the power to require the production of documents and the answering to questions applies if an inspector enters a workplace under this Division, or has within the last 30 days entered a workplace under this Division.  \n\nThe Work Health and Safety (Review) Act 2020 also amended s 171(1)(c) with the effect that an inspector has the power to require a person at the workplace to attend before the inspector at a stated reasonable time and place to answer questions put by the inspector. \n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"In accordance with the additional jurisdictional notes a note clarifies  that  strict liability applies to each offence (s12A).\n\nA note at section 171(7) referring to section 58 of the Criminal Code for the definition of evidential burden.",null,null,"Section 171(1) of the Qld Act differs to the model Act, following amendments made by the Work Health and Safety and Other Legislation Amendment Act 2017 (QLD). According to the Amendment's Explanatory Note, these amendments clarify when an inspector may require the production of documents or answers to questions. Under the Qld Act s 171 applies:\n\n- where the inspector previously entered the workplace (within 30 days) or where another inspector entered the workplace\n- for documents not located at the workplace\n- to production of documents at any place, not just the workplace\n- to require a person to answer questions at any time and place, not just the workplace\n\nIn accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty unit. The QLD Act imposes a maximum penalty of 100 penalty units under s 171(6). This does not distinguish between an individual and a body corporate. \nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,"Subsection (1)(c) has been amended to make it subject to section 172. Section 172 of the SA Act excuses an individual from providing information on grounds of self-incrimination. \n\nThe effect of this amendment is that an inspector cannot require a person at the workplace to answer a question put by the inspector where section 172 would otherwise apply. ",null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'."]
["s 171A\nN/A",null,null,null,"The Work Health and Safety (Review) Act 2020 includes s 171A which further specifies how notice can be given under s 171 including by leaving the notice with a person who appears to reside or work at the premises and appears to be at least 16 years of age. "]
["172 Abrogation of privilege against self-incrimination\n(1) A person is not excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.\n(2) However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.\nNote\nSee the jurisdictional notes in the Appendix.","Subsection 172(1) of the Commonwealth Act also includes a reference to Part 8. \nIn respect of section 172(2), the Commonwealth Act provides for the immunity to extend to any information, document or thing derived both directly or indirectly from the answer or production - not just to the answer or production of a document or thing itself.\n\nSubsection 172(2) of the Commonwealth Act ius worded differently to the model WHS ACt however it's effect is similar. ",null,null,null,null,null,"The ACT Act extends the immunity in subsection 172(2) to derivative use immunity. This means that any information, document or thing that is directly or indirectly obtained because of the giving of an answer or providing a document is not admissable, except for an offence arising out of the false or misleading nature of the information. ",null,null,"The Qld Act extends the immunity in subsection 172(2) to \"derivative use immunity\". This means any answer information or document obtained directly by an inspector and any evidence directly or indirectly derived from the answer, information or document is not admissible  as evidence. ",null,null,"The SA Act differs from the model WHS Act in that a person is excused from answering a question or providing  information or documents on the grounds it may incriminate that person. This is a substantive policy difference. \n\n"]
["173 Warning to be given\n(1) Before requiring a person to answer a question or provide information or a document under this Part, an inspector must:\n(a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and\n(b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and\n(c) warn the person about the effect of section 172; and\n(d) advise the person about the effect of section 269.\n(2) It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this Part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1)(c).\n(3) Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person.",null,null,null,null,null,null,"Section identified headings of referred parts of Act ",null,null,null,null,null,"Consistent with the protection against self-incrimination in section 172, the SA Act amends paragraph 173(1)(c) from 'warn' to 'advise', and omits subsection 173(2) of the model Act. "]
["174 Powers to copy and retain documents\n(1) An inspector may:\n(a) make copies of, or take extracts from, a document given to the inspector in accordance with a requirement under this Act; and\n(b) keep that document for the period that the inspector considers necessary.\n(2) While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times:\n(a) the person who produced the document;\n(b) the owner of the document;\n(c) a person authorised by a person referred to in paragraph (a) or (b).",null,null,null,null,null,null,null,null,null,"The Qld Act changes 'in accordance with a requirement' to 'under a requirement' in paragraph 174(1)(a). This does not alter the effect of the model provision."]
["175 Power to seize evidence etc.\n(1) An inspector who enters a workplace under section 163 may seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act.\n(2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued.\n(3) An inspector may also seize anything else at the place if the inspector reasonably believes:\n(a) the thing is evidence of an offence against this Act; and\n(b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence.",null,null,null,"Subsection 175(1) of the NSW Act is expressed differently to the model Act. Subsection 175(1) includes and (a) and (b) with the addition that an inspector may take and remove for analysis, testing or examination a sample of any substance or thing without paying for it.  ",null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"The Qld Act refers to a person who enters into the workplace 'under this Part' rather than 'section 163'.\nThe Act also inserts paragraph 175(1)(b), which  authorises an inspector to take and remove for analysis testing or examination, a sample of any substance or thing without paying for it.  The effect is that an inspector who enters under any section of Part (including under a warrant) may take a sample."]
["176 Inspector's power to seize dangerous workplaces and things\n(1) This section applies if an inspector who enters a workplace under this Part reasonably believes that:\n(a) the workplace or part of the workplace; or\n(b) plant at the workplace; or\n(c) a substance at the workplace or part of the workplace; or\n(d) a structure at a workplace,\nis defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur.\n(2) The inspector may seize the workplace or part, the plant, the substance or the structure."]
["177 Powers supporting seizure\n(1) Having seized a thing, an inspector may:\n(a) move the thing from the place where it was seized (the place of seizure); or\n(b) leave the thing at the place of seizure but take reasonable action to restrict access to it; or\nExamples\n1 Sealing a thing and marking it to show access to it is restricted.\n2 Sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted.\n(c) if the thing is plant or a structure—dismantle or cause to be dismantled the plant or structure.\n(2) If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector's approval.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) To enable a thing to be seized, an inspector may require the person in control of it:\n(a) to take it to a stated reasonable place by a stated reasonable time; and\n(b) if necessary, to remain in control of it at the stated place for a reasonable time.\n(4) The requirement:\n(a) must be made by written notice; or\n(b) if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable.\n(5) A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement.\n(6) The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5).\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse.","In accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The examples under section 177 (1)(b) have been moved the the end of subsection (1). \n\nNotes beneath subsections (2) and (6) state that strict liability applies to each offence (s 12A).\n\nA note beneath subsection (7) refers to section 58 of the Criminal Code 2002 (ACT) in relation to 'evidential burden'.",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty unit. The Qld Act imposes maximum penalties of 100 penalty units in subsections 177(2) and 177(6). This does not distinguish between an individual and a body corporate.\nSection 36 of the Acts Interpretation Act 1954 (Qld) and section 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'."]
[]
["178 Receipt for seized things\n(1) As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized.\n(2) However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure.\n(3) The receipt must describe generally each thing seized and its condition.\n(4) This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing's nature, condition and value)."]
["179 Forfeiture of seized things\n(1) A seized thing is forfeited to the [State] if the regulator:\n(a) cannot find the person entitled to the thing after making reasonable inquiries; or\n(b) cannot return it to the person entitled to it, after making reasonable efforts; or\n(c) reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act.\n(2) Subsection (1)(a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing.\n(3) Subsection (1)(b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it.\n(4) If the regulator decides to forfeit the thing under subsection (1)(c), the regulator must tell the person entitled to the thing of the decision by written notice.\n(5) Subsection (4) does not apply if:\n(a) the regulator cannot find the person entitled to the thing, after making reasonable inquiries; or\n(b) it is impracticable or would be unreasonable to give the notice.\n(6) The notice must state:\n(a) the reasons for the decision; and\n(b) that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed; and\n(c) how the person may apply for the review; and\n(d) that the person may apply for a stay of the decision if the person applies for a review.\n(7) In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing's nature, condition and value.\n(8) Any costs reasonably incurred by the [State] in storing or disposing of a thing forfeited under subsection (1)(c) may be recovered in a court of competent jurisdiction as a debt due to the [State] from that person.\n(9) In this section person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,null,null,null,"In accordance with the jurisdictional note, the ACT Act has changed 'state' to 'Territory'."]
[]
["180 Return of seized things\n(1) If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized.\n(2) The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing.\n(3) The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing.\n(4) In this section person entitled to a thing means the person entitled to possess the thing or the owner of the thing."]
["181 Access to seized things\n(1) Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times:\n(a) the person from whom the thing was seized;\n(b) the owner of the thing;\n(c) a person authorised by a person referred to in paragraph (a) or (b).\n(2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying."]
["Division 4 Damage and Compensation "]
["182 Damage etc. to be minimised\nIn the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable."]
["183 Inspector to give notice of damage\n(1) This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power.\n(2) The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing.\n(3) If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector's or assistant's control, the inspector may state it in the notice.\n(4) If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.\n(5) This section does not apply to damage the inspector reasonably believes is trivial."]
["184 Compensation\n(1) A person may claim compensation from the [State] if the person incurs loss or expense because of the exercise or purported exercise of a power under Division 3 of this Part.\n(2) Compensation may be claimed and ordered in a proceeding:\n(a) brought in a court of competent jurisdiction; or\n(b) for an offence against this Act brought against the person claiming compensation.\n(3) The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.\n(4) The regulations may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.\nNote\nSee the jurisdictional note in the Appendix.","Subsection 184(2)(a) of the Commonwealth Act does not include the words \"of competent jurisdiction\".\n\nIn accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,null,null,null,"In accordance with the jurisdictional note, the ACT Act has changed 'state' to 'Territory'."]
["Division 5 Other Matters "]
["185 Power to require name and address\n(1) An inspector may require a person to provide the person's name and residential address if:\n(a) the inspector finds the person committing an offence against this Act; or\n(b) the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has committed an offence against this Act; or\n(c) the inspector reasonably believes that the person may be able to assist in the investigation of an offence against this Act.\n(2) When asking a person to provide his or her name and residential address, the inspector must:\n(a) tell the person the reason for the requirement to provide his or her name and residential address; and\n(b) warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse.\n(3) If the inspector reasonably believes that the name or residential address is false, the inspector may require the person to give evidence of its correctness.\n(4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) or (3).\nMaximum penalty: $10 000.\n(5) Subsection (4) places an evidential burden on the accused to show a reasonable excuse.\nNote\nSee the jurisdictional notes in the Appendix.","The Commonwealth Act omits subsection 185(1)(c). The effect is that an inspector does not have the power to require a person to provide their name and address if the inspector reasonably believes that the person may be able to assist with the investigation.  The jurisdictional note to this section provides that a jurisdiction may amend the section to align it with its human rights charter or other legislative protocols. \n\nIn accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"The NSW Act omits subsection 185(1)(c). The effect is that an inspector does not have the power to require a person to provide their name and address if the inspector reasonably believes that the person may be able to assist with the investigation. Section 185(4) is also amended with the effect that it is not specified that a person must not, without reasonable excuse, refuse or fail to comply with a requirement under s 185(3). The jurisdictional note to this section provides that a jurisdiction may amend the section to align it with its human rights charter or other legislative protocols.  \n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,"The ACT Act replaces 'residential address' with 'home address' consistent with drafting practices (see the ACT Parliamentary Counsel's Office Drafting Practice Guide at 14.21).\n\nThe ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).\n\nA note beneath subsection (4) states that strict liability applies to each of the physical elements of the offence (section 12A)\n\nA note beneath subsection (5) refers to section 58 of the Criminal Code (ACT) in relation to evidential burden.",null,null,"The Qld Act omits subsection 185(1)(c). The effect is that an inspector does not have the power to require a person to provide their name and address if the inspector reasonably believes that the person may be able to assist with the investigation.  The jurisdictional note to this section provides that a jurisdiction may amend the section to align it with its human rights charter or other legislative protocols. \n\nThe QLD Act imposes a maximum penalty of 100  penalty units in s 185(4). This does not distinguish between an individual and a body corporate. Section 36 of the Acts Interpretation Act 1954 (QLD) and section 5 of the Penalties and Sentences Act 1992 (QLD) define a penalty unit.\n\nSections 185(6) of the QLD Act provides that a person does not commit an offence if they were required to state their name and address because the inspector suspected they had committed an offence, and they are not proved to have committed the offence.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'."]
["185A N/A",null,null,null,"The Work Health and Safety Amendment Act 2018 inserted s 185A into the NSW WHS Act. This permits an inspector to record questions asked and answers given where the person has been informed that the recording is to be made. Recordings may be made using a sound recording device or an audio visual device.  A copy of any such recording must be provided by the inspector to the person who is questioned as soon as practicable after it is made. A recording may be made under this section despite the provisions of any other law.\n\nNote that this power is also extended to the regulator under subsection 155(8).  "]
["186 Inspector may take affidavits\nAn inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"The NT Act omits the word 'take' and replaces it with 'witness' in section 186. \nThis change appears to made for  consistency with the Oaths, Affidavits and Declarations Act 2010 (NT) which sets out the requirements for affidavits in the NT at Part 3, and provides that an authorised witness for an affidavit includes 'any other person authorised by an Act to witness the affidavit' (s 15(1)(c)).\n\n\n"]
["187 Attendance of inspector at coronial inquests\nAn inspector may attend and has authority to examine witnesses at any inquest into the cause of death of a worker while carrying out work.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jursdictional note section 187 of the Commonwealth Act is omitted with the exception of a note which states that in some jurisdictions, an inspector may attend coronial inquests and examine witnesses. \n\nAs noted at section 160, an inspector is not specifically authorised under the Commonwealth Act to attend a coronial inquest.\n\nThe Explanatory Memorandum in respect of the Commonwealth Act provides that  Csection 187 is not included as State Coroners Acts generally allow any person with a ‘significant interest’ in a matter to appear before an inquest and examine witnesses.\"\n",null,null,null,null,null,null,null,null,"The Qld Act amends section 187, to state that inspectors may be involved in coronial inquests subject to the Coroners Act 2003.",null,null,"In accordance with the jurisdictional note the SA Act omits this provision as this matter is dealt with in other laws of its jurisdiction. In SA coronial inquests are governed by the Coroners Act 2003 (SA) which provides that any person who, in the opinion of the Court, has a sufficient interest in the subject or result of the proceedings may appear and examine witnesses (s 20).\n\nThe SA Act inserts a note under section 187 which provides that a WHS law of another jurisdiction may include a provision about the participation of inspectors appointed under a law of that jurisdiction in inquiries.\n\n",null,null,"The NT Act adds 'If permitted under section 40(3) of the Coroners Act 1993' to s 187.\n\nSection 40(3) of the Coroners Act 1993 (NT) reads:\n\n'A person who, in the opinion of the coroner, has a sufficient interest may, at an inquest, appear or be represented, call and examine or cross-examine witnesses, and make submissions.'",null,null,"In accordance with the jurisdictional note the Tasmanian Act omits section 187.\nAccording to the Clause Notes, this is to avoid conflict with the Coroner's role under the Coroners Act 1995 (TAS)."]
["Division 6 Offences in relation to inspectors"]
["188 Offence to hinder or obstruct inspector\nA person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000."," In accordance with the additional jurisdictional notes the  Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,null,null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The QLD Act imposes a maximum penalty of 100 penalty units. This does not distinguish between an individual and a body corporate unlike the model WHS ACt.\nSection 36 of the Acts Interpretation Act 1954 (QLD) and section 5 of the Penalties and Sentences Act 1992 (QLD) define a penalty unit.",null,null,null,null,null,"The NT Act inserts s 188(2) which states that s 12B does not apply to this offence. Therefore this offence is not strict liability.\n\n(Section 12B of the NT Act clarifies that an offence under the Act attracts strict liability, unless otherwise stated. Per the Explanatory Statement, most offences in the NT Act are strict liability to reflect the seriousness of these offences and the potential harm that can occur).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' . "]
["189 Offence to impersonate inspector\nA person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.\nMaximum penalty: $10 000.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note, the Commonwealth Act has amended s 189 to include the additional requirement of recklessness. This does not change the practical effect of the model WHS Act provision. \n\nIn accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units.",null,null,"In accordance with the jurisdictional note, the ACT Act has amended section 189 to have the effect that a person commits an offence if they recklessly hold themselves out to be an inspector. ",null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The Qld Act imposes a maximum penalty of 100 penalty units.   \n\nSection 36 of the Acts Interpretation Act 1954 (Qld) and section 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"The NT Act has amended section 189 to have the effect that a person commits an offence if they recklessly hold themselves out to be an inspector. This is in accordance with the jurisdictional note, as the NT is a Criminal Code jurisdiction. This is similar to the ACT Act.\n\nThe NT Act inserts subsection 189(2) which states that section 12B does not apply to this offence. Therefore this offence is not strict liability.\n",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]
["190 Offence to assault, threaten or intimidate inspector\nA person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector.\nMaximum penalty:\nIn the case of an individual—$50 000 or imprisonment for 2 years or both.\nIn the case of a body corporate—$250 000.","The Commonwealth Act has amended the wording of section 190 of the Model Act by stating the offender must have intent to  assault, threaten or intimidate an inspector. \n \nIn accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"The ACT Act words the provision differently by setting out  each element of the offence. It also adds a fault element of intention. ",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The Qld Act imposes a maximum penalty of 500 penalty units or 2 years imprisonment. This does not distinguish between an individual and a body corporate unlike the model WHS Act. \nSection 36 of the Acts Interpretation Act 1954 (Qld) and section 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"The NT Act words the provision differently by setting out  each element of the offence but this does not change the practical effect of the model WHS Act provision.  This is similar to the ACT Act.\n\nThe NT Act inserts paragraph 190(2) which states that section 12B does not apply to the offence. Therefore this offence is not strict liability.",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Improvement notice"]
["191 Issue of improvement notices\n(1) This section applies if an inspector reasonably believes that a person:\n(a) is contravening a provision of this Act; or\n(b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.\n(2) The inspector may issue an improvement notice requiring the person to:\n(a) remedy the contravention; or\n(b) prevent a likely contravention from occurring; or\n(c) remedy the things or operations causing the contravention or likely contravention.",null,null,null,null,null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104)."]
["192 Contents of improvement notices\n(1) An improvement notice must state:\n(a) that the inspector believes the person:\n(i) is contravening a provision of this Act; or\n(ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and\n(b) the provision the inspector believes is being, or has been, contravened; and\n(c) briefly, how the provision is being, or has been, contravened; and\n(d) the day by which the person is required to remedy the contravention or likely contravention.\n(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.\n(3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances."]
["193 Compliance with improvement notice\nThe person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.","In accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s12A). ",null,null,"In accordance  with the additional jurisdictional note the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty is 500 units and no distinction is made between individuals and body corporates. \nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["194 Extension of time for compliance with improvement notices\n(1) This section applies if a person has been issued with an improvement notice.\n(2) An inspector may, by written notice given to the person, extend the compliance period for the improvement notice.\n(3) However, the inspector may extend the compliance period only if the period has not ended.\n(4) In this section:\ncompliance 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\n(1) This section applies if an inspector reasonably believes that:\n(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\n(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.\n(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.\n(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.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002: The Commission endorsed the objective test for determining ‘reasonable belief’ as set out in George v Rockett (1990) 170 CLR 104. The Commission also found that the fact the prohibition notice was subject to a merits review was further indication that the test was an objective one ([57],[61]).  The Commissioner found that in forming a reasonable belief, an inspector is required to make reasonable inquiries of the circumstances. An inspector cannot make assumptions and act in them without attempting to test their validity in a timely and practical manner ([95],[96]).   \n"]
["196 Contents of prohibition notice\n(1) A prohibition notice must state:\n(a) that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and \n(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\n(c) the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.\n(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).\n(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 1 or more of the following:\n(a) a workplace, or part of a workplace, at which the activity is not to be carried out;\n(b) anything that is not to be used in connection with the activity;\n(c) any procedure that is not to be followed in connection with the activity.",null,null,null,null,null,null,"Subsection 196(3) is varied as the word 'specifying' is replaced with the word 'stating'. This is unlikely to change the effect of the provision as compared to the model WHS Act."]
["197 Compliance with prohibition notice\nThe person to whom a direction is given under section 195(2) or a prohibition notice is issued must comply with the direction or notice.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000.","In accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note NSW has replaced the reference to $100,000 with 1155 penalty units and  $500,000 with 5770 penalty units. ",null,null,"In accordance with the additional jurisdictional notes a note clarifies  that  strict liability applies to each offence (s12A).\n\nThis section of the ACT Act contains the headings of the other sections referenced.\n\n",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 1000 units and no distinction is made between individuals and body corporates unlike in the model WHS Act. \nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the TAS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["Division 2A Prohibited Asbestos Notice"]
["197A  Definitions\nIn this Division:\nasbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock forming minerals, including the following:\n(a)  actinolite asbestos;\n(b)  grunerite (or amosite) asbestos (brown);\n(c)  anthophyllite asbestos;\n(d) chrysotile asbestos (white);\n(e) crocidolite asbestos (blue);\n(f) tremolite asbestos;\n(g) a mixture that contains 1 or more of the minerals referred to in paragraphs (a) to (f).\nasbestos containing material (ACM) means any material or thing that, as part of its design, contains asbestos.\nprohibited asbestos means asbestos or ACM, fixed or installed in a workplace on or after 31 December 2003.\n\nrelevant person in relation to a workplace means:\n(a) a person conducting a business or undertaking at the workplace; or\n(b)a person with management or control of the workplace; or\n(c) a person with management or control of fixtures, fittings or plant at the workplace; or\n(d)a person who the regulator reasonably believes is or was involved in, or caused, whether directly or indirectly, the fixing or installing of prohibited asbestos at the workplace."]
["197B Issue of prohibited asbestos notices\n\nThe regulator must issue a prohibited asbestos notice to a relevant person in relation to a workplace if the regulator reasonably believes prohibited asbestos is present in the workplace."]
["197C Contents of prohibited asbestos notices\t\n(1)  A prohibited asbestos notice must state:\n(a)  that the regulator believes prohibited asbestos is present in the workplace and the basis of that belief; and\n(b) details of the prohibited asbestos, including the location, type and condition of the prohibited asbestos; and\n(c)  directions in relation to specific measures the relevant person to whom the prohibited asbestos notice is issued is required to take in relation to the prohibited asbestos, including in relation to the management or removal of the prohibited asbestos\n(d) the day by which the relevant person to whom the prohibited asbestos notice is issued is required to comply with the prohibited asbestos notice.\n(2) The day stated for compliance with the prohibited asbestos notice must be reasonable in all the circumstances.\n(3) The regulations may prescribe factors that must be considered by the regulator when determining specific measures the relevant person to whom a prohibited asbestos notice is issued is required to take in relation to prohibited asbestos."]
["197D Compliance with prohibited asbestos notice\nA relevant person to whom a prohibited asbestos notice is issued must comply with the notice.\nMaximum penalty:\nIn the case of an individual—$100 000.\nIn the case of a body corporate—$500 000."]
["197E  Extension of time for compliance with prohibited asbestos notices\n(1) This section applies if a relevant person has been issued with a prohibited asbestos notice.\n(2) The regulator may, by written notice given to the relevant person, extend the compliance period for the prohibited asbestos notice.\n(3) However, the regulator may extend the compliance period only if the period has not ended.\n(4) In this section:\ncompliance period means the period stated in the prohibited asbestos notice under section 197C, and includes that period as extended under this section."]
["Division 3 Non-disturbance notices"]
["198 Issue of non-disturbance notice\nAn 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\n(1) A non-disturbance notice may require the person to:\n(a) preserve the site at which a notifiable incident has occurred for a specified period; or\n(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.\n(2) A non-disturbance notice must specify the period (of no more than 7 days) for which it applies and set out:\n(a) the obligations of the person to whom the notice is issued; and\n(b) the measures to be taken to preserve a site or prevent disturbance of a site; and\n(c) the penalty for contravening the notice.\n(3) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the site.\n(4) A non-disturbance notice does not prevent any action:\n(a) to assist an injured person; or\n(b) to remove a deceased person; or \n(c) that is essential to make the site safe or to prevent a further incident; or\n(d) that is associated with a police investigation; or\n(e) for which an inspector has given permission.",null,null,null,null,null,null,null,null,null,"Section 199(1) refers to stated period instead of specified period. This does not otherwise affect the application of the section. "]
["200 Compliance with non-disturbance notice\n(1) A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.\n(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.","In accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s12A). \n\nA note beneath subsection (2) refers to section 58 of the Criminal Code (ACT) in relation to 'evidential burden'.",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The maximum penalty is 500 units and no distinction is made between individuals and body corporates unlike the model WHS Act. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the TAS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["201 Issue of subsequent notices\nIf an inspector considers it necessary to do so, he or she may issue 1 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\nIn this Division notice means improvement notice, prohibition notice non-disturbance notice or prohibited asbestos notice.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA WHS Act does not include the definition 'prohibited asbestos notice'. The SA Act does not include Division 2A 197A-197E which details prohibted asbestos notice."]
["203 Notice to be in writing\nA notice must be in writing."]
["204 Directions in notices\nA direction included in an improvement notice, prohibition notice or prohibited asbestos notice may:\n(a) refer to a code of practice; and \n(b) offer the person to whom it is issued a choice of measures to take or ways in which to remedy the contravention.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not include the term 'prohibited asbestos notice'. Slight differences in the wording of s 204(b)"]
["205 Recommendations in notice\n(1) An improvement notice, prohibition notice or prohibited asbestos notice may include recommendations.\n(2) It is not an offence to fail to comply with recommendations in a notice.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["206 Changes to notice\n(1) An inspector may:\n(a) make minor changes to a notice issued by an inspector; or\n(b) extend the compliance period for an improvement notice in accordance with section 194.\t\n(2) The regulator may:\n(a) make minor changes to a prohibited asbestos notice issued by the regulator; or\n(b) extend the compliance period of a prohibited asbestos notice in accordance with section 197E.\n(3) In this section, minor changes means a minor change to a notice:\n(a) for clarification; or\n(b) to correct errors or references; or\n(c) to reflect changes of address or other circumstances.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["207 Regulator may vary or cancel notice\n(1) Except as provided in section 206, a notice issued by an inspector may only be varied or cancelled by the regulator.\t\n(2) A notice issued by the regulator may only be varied or cancelled by the regulator.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not include s 207(2) of the model WHS Act "]
["208 Formal irregularities or defects in notice\nA notice is not invalid only because of:\n(a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or\n(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\n(1) A notice may be issued or given to a person:\n(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\n(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\n(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\n(d) in a prescribed manner.\n(2) The regulations may prescribe:\n(a) the manner of issuing a notice; and\n(b) the steps a person to whom a notice is issued must take to bring it to the attention of other persons.",null,null,null,"The Work Health and Safety Amendment Act 2018 removed references to 'facsimile' in subsection (1). This amendment is consistent with the removal of the term under section 38.  The  Work Health and Safety Act 2011 Statutory Review Report - June 2017 recommended the removal of the term under section 38 as SafeWork NSW no longer uses faxes as a form of notification, except in limited circumstances. The Review found that the removal of facsimile will not preclude its use as it is likely a type of electronic transmission or 'service by electronic means' is still provided in the WHS Act.  Similarly, section 209 still refers to 'electronic transmission'. "]
["210 Display of notice\n(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.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.\n(2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) while the notice is in force.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.","In accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s12A). ",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 50 units and no distinction is made between individuals and body corporates. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding'."]
["Division 5 Remedial action"]
["211 When regulator may carry out action\n(1) This section applies if a person to whom a prohibition notice or prohibted asbestos notice is issued fails to take reasonable steps to comply with the notice.\n(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:\n(a) the regulator's intention to take that action; and\n(b) the owner's or person's liability for the costs of that action.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["212 Power of the regulator to take other remedial action\n(1) This section applies if the regulator reasonably believes that:\n(a) circumstances in which a prohibition notice or prohibited asbestos notice can be issued exist; and\n(b) a prohibition notice or prohibited asbestos notice cannot be issued because, after taking reasonable steps:\n(i) in relation to a prohibition notice—the person with management or control of the workplace cannot be found; or\n(ii) in relation to a prohibited asbestos notice—a relevant person in relation to the workplace cannot be found.\n(2) The regulator may take any remedial action necessary to make the workplace safe.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["213 Costs of remedial or other action\nThe regulator may recover the reasonable costs of any remedial action taken under:\n(a) section 211 from the person to whom the notice is issued; or\n(b) section 212 from any person to whom the prohibition notice or prohibited asbestos notice could have been issued in relation to the matter,\nas a debt due to the regulator.",null,null,null,null,null,null,"The Act replaces the word 'regulator' with the word 'Territory\". This variation has the effect that a person to whom the prohibition notice could have been issued will owe a debt to the ACT government rather than the regulator itself.\n\nThis section of the ACT Act contains the headings of the other sections referenced.",null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["Division 6 Injunctions"]
["214 Application of Division\nIn this Division, notice means improvement notice, prohibition notice, non-disturbance notice or prohibtied asbestos notice.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act does not reference 'prohibited asbestos notice'."]
["215 Injunctions for noncompliance with notices\n(1) The regulator may apply to [the designated court] for an injunction:\n(a) compelling a person to comply with a notice; or\n(b) restraining a person from contravening a notice.\n(2) The regulator may do so:\n(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\n(b) whether any period for compliance with the notice has expired.\nNote\nSee the jurisdictional note in the Appendix.","The Commonwealth Act has not designated a particular [court or tribunal]. The Commonwealth Act uses the term \"a court\". \"Court\" is defined broadly in section 4 of the Commonwealth Act.\n",null,null,"The NSW Act specifies the District Court as the [designated court]. ",null,null,"The ACT Act specifies the Supreme Court as the [designated court]. ",null,null,"The Queensland Act specifies the Magistrates Court as the [designated court].",null,null,"The SA Act specifies South Australian Employment Tribunal as the [designated court].",null,null,"The NT Act specifies the Work Health Court as the [designated court] ",null,null,"The Tasmanian Act specifies the Magistrates Court (Civil Division) as the [designated court]."]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["216 Regulator may accept WHS undertakings\n(1) The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act.\nNote\nSection 230(3) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings.\n(2) A WHS undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence.\n(3) The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.",null,null,null,"The cross reference to section 230(3) is replaced with s 230(4) due to variations made to that provision. \n\nApart from the above difference, section 216 of the NSW WHS Act is the same as section 216 of the model WHS Act.",null,null,"Subsection 216(2) includes the word \"However\" at the beginning of the subsection. This is unlikely to result in the provision having a different effect to the model WHS Act.  ",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 amended subsection 216(2) to expand the exclusion of WHS undertakings for category 1 to all offences that involve a fatality. These are a contravention or alleged contravention of a category 1 offence, category 2 offence, if the person’s failure to comply with a health or safety duty results in the death of an individual, or any Part 2A offence.\n\nThe Amendment Act also added subsection 216(4) which requires the regulator to issue and publish on their website, general guidelines in relation to the acceptance of undertakings. According to the EM this provision replaces the omitted note under subsection 216(1). ",null,null,null,null,null,"s 216 of the NT WHS Act contains an additional note after s 216(2). This note states that s 34C(b) prevents a WHS undertaking from being accepted in respect of industrial manslaugther. "]
["217 Notice of decision and reasons for decision\n(1) The regulator must give the person seeking to make a WHS undertaking written notice of the regulator's decision to accept or reject the WHS undertaking and of the reasons for the decision.\n(2) The regulator must publish, on the regulator's website, notice of a decision to accept a WHS undertaking and the reasons for that decision.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Wilmar Sugar Pty Ltd v Blackwood [2018] QCA 138 :\nThe regulator rejected a three member panel’s recommendation that the regulator accept the appellant’s written undertaking. On appeal the appellant asserted that the Regulator failed to provide adequate reasons for rejecting the recommendation and ought to have considered the issues the panel saw material to their recommendation.\nThe Supreme Court rejected this ground of appeal. It found it uncontroversial that the Regulator is not obligated to accept the recommendation or deal with the reasons for the panel’s recommendation point by point. Rather the regulator is to consider the material placed before him and to exercise discretion and reveal the factors that moved him to reject the recommendation. No more was required ([21]-[25]). \n"]
["218 When a WHS undertaking is enforceable\nA WHS undertaking takes effect and becomes enforceable when the regulator's decision to accept the undertaking is given to the person who made the undertaking or at any later date specified by the regulator."]
["219 Compliance with WHS undertaking\nA person must not contravene a WHS undertaking made by that person that is in effect.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.","In accordance with the additional jurisdictional notes, the Commonwealth Act adjusted the provisions by replacing \"maximum penalty\" with \"penalty\". The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s 12A).",null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.   The maximum penalty is 500 units and no distinction is made between individuals and body corporates unlike the model WHS Act. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' ."]
["220 Contravention of WHS undertaking\n(1) The regulator may apply to the [designated court] for an order if a person contravenes a WHS undertaking.\n(2) If the court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the court, in addition to the imposition of any penalty, may make 1 or both of the following orders:\n(a) an order directing the person to comply with the undertaking;\n(b) an order discharging the undertaking.\n(3) In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the [State]:\n(a) the costs of the proceedings; and\n(b) the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future.\nNote\nSee the jurisdictional note in the Appendix.\n(4) Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the WHS undertaking relates.\nNote\nSection 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.","In accordance with the jurisdictional note, the Commonwealth Act has not designated a particular [court or tribunal]. The Commonwealth Act uses the term \"a court\". \"Court\" is defined broadly in section 4 of the Commonwealth Act.\n\nIn accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,"The District Court is the designated court for section 220 of the NSW Act.",null,null,"The Act has not designated a particular court for s 220(1), rather it refers to a 'court'. \nThe reference to [state] in subsection 220(3) refers to the Territory.",null,null,"The Queensland Act specifies the Magistrates Court as the [designated court].",null,null,"The SA Act specifies the Magistrates Court as the [designated court].",null,null,"The NT Act specifies the Work Health Court as the [designated court]. ",null,null,"The Tasmania Act specifies the Magistrates Court (Civil Division) as the [designated court]. "]
["221 Withdrawal or variation of WHS undertaking\n(1) A person who has made a WHS undertaking may at any time, with the written agreement of the regulator:\n(a) withdraw the undertaking; or\n(b) vary the undertaking.\n(2) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of the Act.\n(3) The regulator must publish, on the regulator's website, notice of the withdrawal or variation of a WHS undertaking."]
["222 Proceeding for alleged contravention\n(1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a WHS undertaking is in effect in relation to that contravention.\n(2) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to that contravention and has completely discharged the WHS undertaking.\n(3) The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised.\n(4) If the regulator accepts a WHS undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible.",null,null,null,null,null,null,"Subsection 222(3) refers to 'before a proceeding' as opposed to 'before the proceedings'. These variations do not change the meaning of section 222.",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 amended section 222 as a consequence of amendments made to section 216 in relation to undertakings and the creation of the WHS prosecutor.\n \nSubsection (3) was amended to have the effect that a regulator can accept undertakings in relation to a contravention or alleged contravention with exception of a category 1 offence, category 2 where a person has died or an offence against Part 2A. \n\nSubsection 222(4) is amended to provide that where the regulator accepts a WHS undertaking before the proceedings are finalised it must immediately notify the WHS prosecutor and the WHS prosecutor must take all reasonable steps to have the proceedings discontinued as soon as possible. This is similar to what is in the model WHS Act, except it is varied to reflect the fact the regulator's functions to conduct and defend proceedings under the WHS Act before a court or tribunal were transferred to the WHS Prosecutor.",null,null,"The SA Act replaces 'that contravention' in subsections (2) and (3) with 'the contravention'. This is a minor drafting variation that does not alter the effect of the model WHS provision. "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 Reviewable Decisions"]
["223 Which decisions are reviewable\n(1) The following table sets out:\n(a) decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions); and\n(b) who is eligible to apply for review of a reviewable decision (the eligible person).\n\n[SEE TABLE IN SECTION 223 OF THE MODEL ACT]\n\n(2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to:\n(a) making, suspending, revoking or refusing to make an order, determination or decision;\n(b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission;\n(c) issuing, suspending, revoking or refusing to issue an authorisation;\n(d) imposing a condition;\n(e) making a declaration, demand or requirement;\n(f) retaining, or refusing to deliver up, a thing; or\n(g) doing or refusing to do any other act or thing.\n(3) In this section person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing.\nNotes\n1 Decisions under the regulations that will be reviewable decisions will be set out in the regulations.\n2 See the jurisdictional note in the Appendix.","The Commonwealth Act omits the first note stating that decisions under the regulations that will be reviewable decisions will be set out in the regulations.",null,null,null,null,null,"The table is identified as 'Table 223' in the ACT Act. \n\nThe table appears at the end of section 223 in the ACT Act.\n\nSimilar to NT and Tasmania the table includes provisions not set out in the model WHS Act table:  section 134 (decision to refuse to issue a WHS permit), section 140 (decision to revoke, suspend or take other action in relation to an entry permit). \n\nThe table also includes provisions which are not in the model WHS Act relating to major construction projects: sections 72A(7) (decision in relation to HSR training) and 79A(7) (decision in relation to WHC training). \n\nThe item numbers in the table have been renumbered due to the additions in the ACT Act. ",null,null,"The  Work Health and Safety and Other Legislation Amendment Act 2017 inserted at note at the end of s 223(1) that informs the reader that subsection 102D(5) sets out decisions that are taken not to be reviewable under the section.  Subsection 102D(5) refers to a decision made by the Commission upon reviewing  a decision made by an inspector under division 7A of Part 5.  \n\nDivision 7A sets out a process for parties to have the Commission hear and determine disputes relating to several areas including WHS matters arising under the issue resolution process in Div 5 Part 5 (see definition of WHS matter in s 102A).\n\nThe table is set out in Schedule 2A. The table does not include s 72(6). This is a consequential amendment to s 72 by the Amendment Act 2017 which mandates training for HSRs within 6 months of a HSR being elected. The table has an additional column which sets out the external review body. This reflects what is set out in Divisions 3 and 4.",null,null,"The table refers to different provisions in the SA Act:\nSection 72(7) (decision of inspector in relation to training of health and safety representative)\n\nThe Notes at the bottom of this section are omitted from the SA Act. ",null,null,"Similar to the ACT and NT  the table includes provisions not set out in the model WHS Act table:  section 134 (decision to refuse to issue a WHS permit), section 140( decision to revoke, suspend or take other action in relation to an entry permit).",null,null,"Similar to the ACT and NT  the table includes provisions not set out in the model WHS Act table:  section 134 (decision to refuse to issue a WHS permit), section 140 (decision to revoke, suspend or take other action in relation to an entry permit)."]
["Division 2 Internal Review"]
["224 Application for internal review\n(1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within:\n(a) the prescribed time after the day on which the decision first came to the eligible person's notice; or\n(b) such longer period as the regulator allows.\n(2) The application must be made in the manner and form required by the regulator.\n(3) For the purposes of this section, the prescribed time is:\n(a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and\n(b) in any other case, 14 days.",null,null,null,null,null,null,"The ACT replaces 'prescribed time' with 'relevant time'. This is likely a drafting preference. \n\nA note beneath subsection (2) states the effect of section 277 of the ACT Act, being that if a form is approvied approved that section, the form must be used.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4: Standing to apply for internal review under sections 224 and 223 is not affected by whether or not that person initiated or was involved in an earlier stage of the matter, so long as that person is a worker whose interests are affected by the decision for review ([53]). "]
["225 Internal reviewer\n(1) The regulator may appoint a person or body to review decisions on applications under this Division.\n(2) The person who made the decision cannot be an internal reviewer in relation to that decision."]
["226 Decision of internal reviewer\n(1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received.\n(2) The decision may be:\n(a) to confirm or vary the reviewable decision; or\n(b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.\n(3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer.\n(4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information.\n(5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time.\n(6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer.",null,null,null,null,null,null,"The ACT Act replaces 'that time' with 'the required time' in subsection (5). This does not change the effect of the provision",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"GrowthBuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002: GrowthBuilt Pty Ltd sought review of a decision to issue a prohibition notice.  SafeWork NSW advised that, as the Prohibition Notice had been complied with, the decision to issue it was not reviewable. GrowthBuilt considered the internal review necessary because of the reputational impacts.\nThe Commission held that the failure of SafeWork NSW to make a decision, within the applicable timeframe, in respect of the application for internal review, meant that the Commission had jurisdiction to entertain the application for external review ([29]). \nAt the outset of his submissions Counsel for SafeWork NSW accepted that SafeWork NSW should have completed the internal review. The fact that the Prohibition Notice had been complied with did not render the decision non-reviewable. SafeWork NSW had no such policy in place ([33]).\n\nNSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4: The Commission found that in having the power to confirm, vary or set aside the reviewable decision and substitute a new decision, an internal reviewer is conducting a merits review. The reviewer is required to review the decision, and not necessarily the reasons for it, to determine what is the \"right or preferable\" determination ([55])."]
["227 Decision on internal review\nAs soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing:\n(a) the decision on the internal review; and\n(b) the reasons for the decision."]
["228 Stays of reviewable decisions on internal review\n(1) An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision.\n(2) If an application is made for an internal review of a decision to issue a prohibition notice or a non-disturbance notice, the reviewer may stay the operation of the decision.\n(3) The reviewer may make the decision to stay the operation of a decision on the reviewer's own initiative or on the application of the applicant for review.\n(4) The reviewer must make a decision on an application for a stay within 1 working day after the reviewer receives the application.\n(5) If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay.\n(6) A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier:\n(a) the end of the prescribed period for applying for an external review of the decision made on the internal review;\n(b) an application for external review is made.",null,null,null,"Similar to the Tasmania, NSW omits \"on internal review\" from the heading of the section. This does not change the effect of the provision.  ",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Similar to NSW the section omits \"on internal review\" from the heading."]
["Division 3 External Review "]
["229 Application for external review\n(1) An eligible person may apply to [the external review body] for review (an external review) of:\n(a) a reviewable decision made by the regulator; or\n(b) a decision made, or taken to have been made, on an internal review.\nNote\nSee the jurisdictional notes in the Appendix.\n(2) The application must be made:\n(a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice; or\n(b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice; or\n(c) if the regulator is required by the external review body to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.","Refers to the Fair Work Commission as the [external review body].\n\nIn accordance with the jurisdictional note the provision has inserted subsection (3) which sets out the nature and scope of the review. The provision provides that the FWC may confirm, vary or set aside the decision and make a new decision. ",null,null,"Refers to the Industrial Relations Commission as the [external review body].\n\nIn accordance with the jurisdictional note the provision has inserted subsections (3) and (4) which sets out the nature and scope of the review. The provision provides that the Commission may stay the decision pending a decision and may confirm vary or revoke the decision concerned. ",null,null,"Refers to the ACAT as the [external review body]. ",null,null,"The Queensland Act does not specify one external review body. Instead the review bodies are the Commission and QCAT (see the definition of 'external review body' and s 223(1)(c)). \n\nAs the Queensland Act has two external review bodies, it does not replicate subsection (2) of the model WHS Act. Instead subsection (2) provides that a review by QCAT is provided for under the QCAT Act and subsection (3) provides that a review by the Commission is provided under division 4.\n\n",null,null,"Refers to the South Australian Employment Tribunal as the [external review body].",null,null,"Refers to the Work Health Court as the [external review body].\n\nThe provision includes s229(3)  which qualifies the time limit in subsection 229(2). It provides that the court may extent the period allowed for applying for a review if there are good reasons for doing so. ",null,null,"Refers to the Magistrates Court (Administrative Appeals Division) as the [external review body].",null,null,"\nNSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4:  This case concerned an application made by an individual to intervene in a matter brought by NSW Rural Fire Service. The Fire Servie was seeking external review of a decision of SafeWork NSW pursuant to s 229(1)(b). \nIn his decision Kite AJ considered the construction of section 229. He found that in conducting an external review the Commission is to undertake a merits review following the normal arbitral processes of the Commission (as set out in ss162 and 163) ([72]). Kite AJ also made reference to the fact a merits review is by way a de novo hearing [65]. \nKite AJ stated the Commission has the power to vary, confirm or revoke an internal review decision (s 229(4)) but no express power to substitute that  decision with its own. Kite AJ observed that it would be ‘odd’ that the Commission could not do such a thing. ([67]). \n\nSydney Trains v Safework (NSW) [2017] NSWIRComm 1009:  Newall C also considered the construction of section 229 under the NSW WHS Act. He agreed with Kite AJ the Commission has the power to ‘vary’ the internal reviewer’s decision by altering it to such a degree that it said something entirely different, in effect substituting a new decision ([19]).  The legislative framework leaves no other means to replace a decision which is wrong with the correct and preferable decision ([52]).\nKite AJ also found that the hearing of an external review is to be conducted on a de novo basis. That is the Commission must provide a fresh decision. However he did observed that this conclusion sits awkwardly with subsection 229(4) that the Commission may ‘confirm, vary or revoke’ the internal review decision. ([23],[24], [26]).  Newall C also found that as it is a de novo hearing he could not agree with Kite AJ that the reasons for the internal decision are relevant to the Commission and would be accorded due weight. This is because the matter is dealt with afresh ([25]). \n"]
["s229A",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"In accordance with the jurisdictional note to section 229 the NT Act provides for the nature and scope of external review and powers of the Court in relation to external review, as set out in sections 229A -D. \n\nThis provision empowers the Work Health Court to decline to deal with or to continue dealing with, an application for external review if satisfied the application is frivolous, vexatious or not made in good faith."]
["s229B",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section empowers the court to make stay orders"]
["s229C",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section outlines a procedure for external review"]
["s229D",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This section provides the court may confirm, vary or set aside and substitute its own decision. "]
["Division 4 Review by Commission"]
["s229A",null,null,null,null,null,null,null,null,null,"Division 4 sets out the nature and scope of external review by the Commission. \nThis section provides that a person who applies to the Commission for a review is entitled to a statement of the decision and the related reasons for that decision."]
["s229B",null,null,null,null,null,null,null,null,null,"This section provides how a review is to be started in the Industrial Commission. "]
["s229C",null,null,null,null,null,null,null,null,null,"This section provides that the Industrial Commission may grant a stay of a decision to secure the effectiveness of the review."]
["s229D",null,null,null,null,null,null,null,null,null,"This section provides the hearing procedures for a review."]
["s 229E",null,null,null,null,null,null,null,null,null,"This section details the powers of the Commission when deciding an application or review. "]
["s 229F",null,null,null,null,null,null,null,null,null,"This section details that a person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016. "]
[]
[" "]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 General matters"]
["229B",null,null,null,"The jurisdictional note to section 230 states a jurisdiction may confer jurisdiction on courts to hear prosecutions in relation to offences under the WHS Act. The NSW Act does this but sets out the provisions under section 229B.  It provides that offences against the Act are to be dealt with summarily before a Local Court or District Court in its summary jurisdiction. The exception is Category 1 offences committed by an individual which is to be heard on indictment. The maximum penalty to be imposed by such courts is 650 penalty units. \n"]
["230 Prosecutions\n(1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by:\n(a) the regulator; or\n(b) an inspector with the written authorisation of the regulator (either generally or in a particular case).\n(2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.\n(3) The regulator must issue, and publish on the regulator's website, general guidelines for or in relation to:\n(a) the prosecution of offences under this Act; and\n(b) the acceptance of WHS undertakings under this Act.\n(4) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act.\nNote\nSee the jurisdictional notes in the Appendix.",null,null,null,"This section differs from the WHS Act in that it enables prosecutions to be brought where the regulator declines to do so. The NSW Act provides the Secretary of an industrial organisation of employees can bring proceedings for Category 1 or 2 only if the regulator has declined to follow the advice of the DPP to bring proceedings (if that proceeding concerns its members).   Subsection 230(6) is also included and provides where the Secretary of the industrial organisation of employees brings proceedings the court cannot direct any portion of the fine or penalty to be paid to the prosecutor. \n\nSubsection 230(1A)  also enables the lawyer of a person authorised to bring a prosecution under subsection (1)  to bring the proceedings.\n\nThe section also makes clear that an authorisation under paragraph 230(1)(b) is sufficient authority to continue proceedings where the court amends the charge warrant or summons. \n\nSubsection 230(3) of the model Act changes to subsection (4) under the NSW Act.\n\n\n\n ",null,null,"Subsection (2) of the model Act is omitted and replaced by a provision that enables the regulator to refer a matter to the DPP if it believes on reasonable grounds that an offence has been committed. Although Part 13 envisions that only the DPP will prosecute offences (see e.g. section 236(2)), the regulator and inspectors with written authorisation retain the ability to bring proceedings under the ACT WHS Act.  \n\nSubsection (3) has also been amended. Under the ACT Act the requirement for the regulator to publish guidelines in relation to the prosecution of offences has been replaced with a requirement to publish guidelines relating to referral of matters to the DPP. \n\nA new subsection (4) and note is added to the ACT Act to state that a guideline is a notifiable instrument. \n\nSubsection (4) of the model Act is renumbered as subsection (5) in the ACT Act.\n\nThe ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"In accordance with the jurisdictional note Queensland has conferred jurisdiction on courts to hear prosecutions in relation to offences under the WHS Act. Section 230(1AA) provides that proceedings for an offence against part 2A and category 1 are not taken in a summary way under the Justices Act 1886 (i.e. before the Magistrates Court).\n\nSubsection 230(1) of the Queensland Act differs from the model WHS Act as it refers to the WHS prosecutor instead of the regulator. The WHS prosecutor role was introduced by the Amendment Act 2017. The WHS prosecutor took over the regulator's  function to conduct and defend proceedings.  The subsection also provides that an inspector with the written authorisation from the WHS prosecutor can also bring category three prosecutions.  This is much narrower than paragraph (1)(b) in the model WHS Act which enables an inspector with authorisation to bring proceedings for any offence under the Act. \n\nThe guideline requirement in subsection 230(3) was moved to section 216 by the Amendment Act 2017. In its place is a requirement on the WHS prosecutor to have regard to any guidelines issued under the Director of Public Prosecutors Act 1989.",null,null,"In accordance with the jurisdictional note the SA Act has conferred jurisdiction on courts to hear prosecutions in relation to offences under the WHS Act.  The Statutes Amendment (South Australian Employment Tribunal) Act 2016 amended section 230 to expand the jurisdiction of the SAET, sitting as the SA Employment Court, and transferred jurisdiction to that court for most WHS offences. \nThe SAET has jurisdiction to hear prosecutions for summary offences or minor indictable offences dealt with summarily under the WHS Act (subsection (3a)). A minor indictable offence that is dealt with as a summary offence is to be heard by a Magistrate who is a member of the SA Employment Court (subsection (8)).\nUnder the Criminal Procedure Act 1921 (SA) offences with a maximum fine of up to $120,000 are summary offences, while those with a maximum fine over $120,000 and/or a maximum sentence of up to 5 years imprisonment are minor indictable offences. \n\nIndictable offences will be heard summarily before the SA Employment Court, except for category 1 offences and category 2 and 3 offences where the offender is a body corporate. Where the court considers a person found guilty of an indictable offence heard summarily should be subject to a penalty of over $300,000, the court can refer sentencing to the District Court (subsections (4)-(6)). \n\nCommittal proceedings for indictible offences must be conducted by a Magistrate who is a member of the SA Employment Court (subsection (9)).  \nSubsection (4) becomes subsection (9)."]
["231 Procedure if prosecution is not brought\n(1) If:\n(a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence; and \n(b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 12 months after that occurrence,\nthe person may make a written request to the regulator that a prosecution be brought.\n(2) Within 3 months after the regulator receives a request the regulator must:\n(a) advise the person (in writing):\n(i) whether the investigation is complete; and\n(ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought; and\n(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).\n(3) If the regulator advises the person that a prosecution for a Category 1 or Category 2 offence will not be brought, the regulator must:\n(a) advise the person that the person may ask the regulator to refer the matter to the Director of Public Prosecutions for consideration; and\n(b) if the person makes a written request to the regulator to do so, refer the matter to the Director of Public Prosecutions within 1 month of the request.\n(4) The Director of Public Prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the Director considers that a prosecution should be brought.\n(5) The regulator must ensure a copy of the advice is given to:\n(a) the person who made the request; and\n(b) the person who the applicant believes committed the offence.\n(6) If the regulator declines to follow the advice of the Director of Public Prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).\n(7) In this section a reference to the occurrence of an act, matter or thing includes a reference to a failure in relation to an act, matter or thing.\nNote: See the jurisdictional note in the Appendix.","The Commonwealth Act varies the regulator's obligations under section 231. Subsection 231(2)(b) omits the obligation that the regulator advise the person who the applicant believes committed the offence of whether an investigation is complete and whether a prosecution will be brought. The only thing the regulator must advise the person accused of the offence is that an application has been made under section 231. \n\nSubsection 231(3) differs in that it provides that 'If the regulator advises the person that an investigation has been conducted and a prosecution for a Category 1 or 2 offence will not be brought (emphasis added).  This variation is unlikely to have a practical effect. It is likely that under the model WHS Act, a regulator would have conducted an investigation before deciding whether or not to prosecute. \n\nSubsection 231(4) is varied to require the DPP to consider the matter and advise the regulator of their consideration as soon as practicable. The model WHS Act sets a 1 month period. Depending on the circumstances this variation may provide the DPP a longer period in which to conduct their assessment.\n\nSubsection 231(5) is varied to provide that the regulator is not required to provide the actual advice to the person who made the request or who the person accused of committing an offence. Rather the regulator only has to advise in writing of the DPP's consideration and provide the person who made the request a summary of the reasons given by the DPP. This difference may not have a major practical effect. Subsection 215(6) makes amendments consequential to s231(5) in that it refers to 'information' rather than 'a copy of the advice'.\n\nThese variations are permitted by a jurisdictional note.",null,null,"The NSW WHS Act amends s 231(1)(b) with the effect that a person can make a written request to the regulator that a prosecution be bought within 18 months instead of 12 months of the occurrence of an act, matter or thing. The WHS regulator is also required to provide updates every three months to the requestor until a decision to prosecute is made. ",null,null,"Subsection (1) of the ACT Act has been reworded. There is no change to the effect of the provision. \n\nIn accordance with the jurisdictional note, the subsequent subsections are varied to reflect the role of the DPP in the ACT jurisdiction. \n\nSubsections (2) and (3) are varied to amend references to the regulator itself bringing a prosecution, to instead refer to the regulator referring the matter to the DPP. Under the Work Health and Safety (Prosecution) Guidelines 2018 (No 1) (ACT) the DPP prosecutes matters on behalf of   WorkSafe ACT. \n\nSubsections (4) and (5) are retained.\n\nSimilar to the Commonwealth and Tasmania, the time period in s231(4) is varied to require the DPP to provide their consideration as soon as practicable. The model WHS Act sets a 1 month period. This variation could provide the DPP a longer or shorter time period to decide, depending on the circumstances.\n\n",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 inserted provisions particular to Part 2A. Subsection (1A) enables a person to make a written request to the regulator to bring a prosecution if they reasonably consider an act or omission constitutes a Part 2A offence, no prosecution has been brought, and it has been 6 months since the act or omission happened. Note that unlike the model WHS Act there is no 12 month time period in which to make a written request.\n\nVariations are made throughout the provision as a consequence of subsection(1A).\n\nThe reference to 'regulator' is also replaced with 'WHS prosecutor'. This is because the regulator's functions to conduct and defend proceedings were given to the  WHS prosecutor under the Amendment Act 2017. ",null,null,null,null,null,"In accordance with the jurisdictional note the NT does not include subsections (3) to (6) as they are inconsistent with prosecutorial policy and practice. \n\nSection 231(1) is also worded differently and s 231(a) refers to industrial manslaughter. ",null,null,"In accordance with the jurisdictional note Tasmania varies the time period in s231(4) to require the DPP to provide their consideration as soon as practicable. The model WHS Act sets a 1 month period. This variation could provide the DPP a longer time period to decide, depending on the circumstances. This variation is also made in the Commonwealth and ACT Acts. \n\nTasmania also varies s 231(5). Unlike the model Act which requires a copy of the DPP's advice to be provided, the Tasmania Act only requires that the regulator notify the person who made the request and the person accused of an offence on whether the DPP considers a prosecution should be brought. Only the person who made the request is provided a summary of the DPP's decision.  "]
[]
["231A Referral to Director of Public Prosecutions",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Section 231A enables the NT regulator to seek the views of the Director of Public prosecutions on the merits of a prosecution concerning deaths for Category 1,2 and 3 and industrial manslaughter. The Regulator can also seek the views of the Director of Public Prosecutions if the regulator receives a request under s 231 for the prosecution of an offence in respect to a death. "]
["231B Consent to prosecution",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Section 231B requires the regulator to obtain the consent of the Director of Public  Prosecutions before bringing proceedings for a Category 1, 2 or 3 offence in respect of a death or industrial manslaughter."]
["232 Limitation period for prosecutions\n(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur:\n(a) within 2 years after the offence first comes to the notice of the regulator;\n(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act;\n(c) if a WHS undertaking has been given in relation to the offence, within 6 months after:\n(i) the WHS undertaking is contravened; or\n(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened; or\n(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.\nNote\nSee the jurisdictional note in the Appendix.\n(2) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.","Paragraph 232(1)(b) is varied to add that prosecutions may be brought within 1 year after an official inquiry has ended. The term official inquiry is defined at subsection (3) to include a Royal Commission. \n\nSubsection 232(2) is also amended to make clear that it is the court in which the proceedings are brought that decides if the fresh evidence could not have reasonably been discovered within the relevant limitation period. It is unlikely that this variation would result in any practical differences as compared to the model WHS Act. \n\nThese variations are permitted by a jurisdictional note.",null,null,null,null,null,"The words 'to occur' are omitted from subsection (1) of the ACT Act. This does not change the effect of this provision.",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 inserts subsection 232(3) to inform the reader that the limitation in subsection (1) does not apply to Part 2A. This means that there is no limitation on bringing an industrial manslaughter prosecution.",null,null,null,null,null,null,null,null,null,null,null,"S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5: At first instance the Supreme Court determined, relevantly, that the regulator brought proceedings within 1 year after the publication of the Deputy Corner’s Reasons for Decision Not to Hold an Inquest, as fixed by paragraph 232(1)(b). The appellant appealed on the basis that the Deputy Coroner’s reasons did not constitute a ‘coronial inquiry’ or once which ‘ended’ on the publication of the reasons, so that paragraph (1)(b) did not operate to extent the limitation period for laying a compliant.\nThe Court dismissed this ground of appeal. The Full Court found that the Deputy Coroner undertook her statutory obligations, as set out in her report, including investigating the death, declining to hold an inquest and making formal findings as to the identity of the deceased and the time, place and reason for the death. The Full Court found this process fell within the natural meaning of ‘inquiry’. Adopting an ordinary and nature reading of the language, the inquiry ‘ended’ with the recording and publication of the Deputy Coroner’s reasons ([32]-[33]).\nThe Court dismissed the appellant’s argument that as the WHS Act forms part of a national  uniform legislative scheme, the term “inquiry” takes its flavour from the usage in coronial legislation in other Australian jurisdictions. The Court added that even if this is permissible, the term “inquiry” is not used with any uniformity in those Acts ([42], [43]).\n\n"]
["233 Multiple contraventions of health and safety duty provision\n(1) Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.\n(2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.\n(3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.\n(4) In this section health and safety duty provision means a provision of Division 2, 3 or 4 of Part 2.",null,null,null,null,null,null,"The word 'However' is added to the start of subsection (2). This does not change the effect of this provision.\n\nReferences to parts of the ACT Act are reworded in line with the drafting conventions used in that jurisdiction.",null,null,null,null,null,null,null,null,null,null,null,null,null,null,"Roadside Products Pty Ltd v Cocker [2018] TASSC 6: In obiter comments Brett J considered the application of section 233, particularly the meaning of ‘provision. Brett J found section 233 directly abrogates the prohibition against duplicity in respect of offences, insofar as it applies to more than one contravention of the same provision, notwithstanding that each contravention might be charged as a separate offence. The section can be easily applied, provided that it can be determined that the contraventions are of the same health and safety duty provision, rather than separate provisions ([37]). Brett J observed that sections 19(1) and (3), read together constitute a single WHS provision for the purposes of section 233. "]
["233A ",null,null,null,"The additional provision in the NSW WHS Act provides that a certificate signed by the regulator certifying certain matters is admissible in court and prima facie evidence. The matters include whether and when a person was an inspector or staff member of the regulator or had authorisation to bring proceedings for an offence against the Act. "]
["Division 2 Sentencing for offences"]
["234 Application of this Division\nThis Division applies if a court convicts a person, or finds a person guilty (the offender), of an offence against this Act.",null,null,null,null,null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,null,null,null,"The SA Act has inserted subsection (2), which clarifies that a reference to a court in division 2 refers to the court mentioned in subsection (1) (i.e. the court that convicted a person or finds them guilty of an offence against the Act). This is a minor variation and does not change the operation of the provision. "]
["235 Orders generally\n(1) One or more orders may be made under this Division against the offender.\n(2) Orders may be made under this Division in addition to any penalty that may be imposed or any other action that may be taken in relation to the offence.",null,null,null,null,null,null,"Includes a note that an order under the division may be made as a condition of good behaviour order under the Crimes (Sentencing) Act 2005."]
["236 Adverse publicity orders\n(1) The court may make an order (an adverse publicity order) in relation to the offender requiring the offender:\n(a) to take either or both of the following actions within the period specified in the order:\n(i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter;\n(ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and\n(b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.\n(2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence.\n(3) If the offender fails to give evidence to the regulator in accordance with subsection (1)(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order.\n(4) However, if:\n(a) the offender gives evidence to the regulator in accordance with subsection (1)(b); and\n(b) despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order,\nthe regulator may apply to the [designated court] for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions.\n(5) If the regulator or a person authorised in writing by the regulator takes an action or actions in accordance with subsection (3) or an order under subsection (4), the regulator is entitled to recover from the offender, by action in a court of competent jurisdiction, an amount in relation to the reasonable expenses of taking the action or actions as a debt due to the regulator.\nNote See the jurisdictional note in the Appendix.","Subsection 236(5) differs from the model WHS Act in that it does not refer to a court 'of competent jurisdiction'. This variation is unlikely to result in any practical differences to the operation of the provision .\n\nThe Commonwealth Act has not designated a specific court in subsection (4) . \"Court\" is given a broad definition in section 4 of the Commonwealth Act.",null,null,"The NSW Act has not designated a specific court in subsection (4). Court is defined in the NSW Act as the court having jurisdiction in the matter concerned. ",null,null,"The ACT has not designated a specific court in subsection (4). \n\nSubsection (5) is amended so as to make the debt due to the Territory rather than the regulator. \n",null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 replaced references of 'prosecutor' with WHS prosecutor' as a consequence of the creation of the independent statutory office of the WHS prosecutor.\n\nQueensland has not designated a specific court in subsection (4). ",null,null,"SA  has not designated a specific court in subsection (4), because this is dealt with by the addition of section 234(2) above. "]
[]
["237 Orders for restoration\n(1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy.\n(2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if an application for the extension is made before the end of that period."]
["238 Work health and safety project orders\n(1) The court may make an order requiring the offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order.\n(2) The order may specify conditions that must be complied with in undertaking the specified project."]
["239 Release on the giving of a court-ordered WHS undertaking\n(1) The court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions (a court-ordered WHS undertaking).\n(2) A court-ordered WHS undertaking must specify the following conditions:\n(a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned;\n(b) that the offender does not commit, during the period of the adjournment, any offence against this Act;\n(c) that the offender observes any special conditions imposed by the court.\n(3) An offender who has given a court-ordered WHS undertaking under this section may be called on to appear before the court by order of the court.\n(4) An order under subsection (3) must be served on the offender not less than 4 days before the time specified in it for the appearance.\n(5) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered WHS undertaking, it must discharge the offender without any further hearing of the proceeding."]
["240 Injunctions\nIf a court finds a person guilty of an offence against this Act, the court may issue an injunction requiring the person to cease contravening this Act.\nNote\nAn injunction may also be obtained under section 215 for noncompliance with a non-disturbance notice, improvement notice or prohibition notice.",null,null,null,null,null,null,null,null,null,"minor variation that replaces 'person' with 'offender'"]
["241 Training orders\nThe court may make an order requiring the person to undertake or arrange for 1 or more workers to undertake a specified course of training.",null,null,null,null,null,null,null,null,null,"Minor variation that replaces 'person' with 'offender'"]
["242 Offence to fail to comply with order\n(1) A person must not, without reasonable excuse, fail to comply with an order under this Division.\nMaximum penalty:\nIn the case of an individual—$50 000.\nIn the case of a body corporate—$250 000.\n(2) Subsection (1) places an evidential burden on the accused to show a reasonable excuse.\n(3) This section does not apply to an order or injunction under section 239 or 240.","In accordance with the additional jurisdictional notes the  Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $50,000 with 575 penalty units and $250,000 with 2885 penalty units. ",null,null,"The term 'accused'  is replaced by 'defendant' under the ACT Act.\n\nIn accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s12A).  \n\nAn additional note under subsection (2) refers to the Criminal Code 2002 (ACT) in relation to 'evidential burden'. ",null,null,"In accordance with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units. The Act provides for a maximum of 500 penalty units and does not distinguish between a body corporate or an individual unlike the model WHS Act. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["Division 2A Penalty Units"]
["242A",null,null,null,"Section 242A of the NSW WHS Act includes a definition of Consumer Price Index (CPI) and financial year. These definitions are for the purpose of determining the value of a penalty unit. "]
["242B",null,null,null,"Section 242B prescribes the process for calculating the value of a penalty unit. "]
["242C",null,null,null,"Section 242C prescribes the process for calculating the monetary value of a penalty expressed as a number of penalty units in the NSW WHS Act. "]
["242D",null,null,null,"Section 242D provides the process of providing notice of increases in the monetary value of penalties. "]
["Division 3 Infringement notices"]
["243 Infringement Notices\nNote See the jurisdictional notes in the Appendix","In accordance with the jurisdictional note the Commonwealth Act enables an infringement scheme to be established and prescribes offences for which infringement notices may be issued with the model regulations. Section 243 of the Commonwealth Act states: \n\n(1) If an inspector has reasonable grounds to believe that a person has contravened a provision enforceable under this Division, the inspector may give to the person an infringement notice for the alleged contravention.\n(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.\n(3) A single infringement notice must relate only to a single contravention of a single provision enforceable under this Division.\n(4) The regulations may prescribe provisions that are enforceable under this Division.",null,null,"The NSW Act has inserted an infringement notice regime in section 243, in accordance with the jurisdictional note in the Model Act. It refers to a 'penalty notice' rather than an 'infringement notice'.  It provides\n\n(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.\n(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.\n(3) The Fines Act 1996 applies to a penalty notice issued under this section.\nNote. The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.\n(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding 20% of the maximum amount of penalty that could be imposed for the offence by a court).\n(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.\n(6) In this section, authorised officer means a member of staff of the regulator authorised in writing by the regulator as an authorised officer for the purposes of this section.",null,null,"In accordance with the jurisidictional note the ACT has not included an infringement regime under the WHS Act - it relies on the regime under the Magistrates Court 1930 Act (ACT) Part 3.8.",null,null,"Does not utilise s 243 but includes the section to preserve numbering.",null,null,"The infringement notice regime is found under the Expiation of Offences Act 1996 (SA). A reference to an infringement notice under the Act is taken to be a reference to an expiation notice and an expiation notice may be issued in relation to any matter the subject of an infringement notice under the WHS Act.  \n\nAn expiation notice is a notice which requires a person to pay a fee for committing an offence as an alternative to being prosecuted. The person may elect to be prosecuted instead of paying the fee. ",null,null,"In accordance with the jurisdictional note the Act does not utilise this provision as section 65D of the NT's Interpretation Act allows for subordinate legislation to be made providing for infringement notices.",null,null,"In accordance with the jurisdictional note the Tasmania Act enables provisions to establish an infringement notice scheme and prescribes relevant offences. Section 243 provides :\n(1)  An inspector may serve an infringement notice on a person, other than a person under the age of 16 years, if of the opinion that the person has committed a prescribed offence.\n\n(2)  An infringement notice is not to relate to 4 or more offences.\n\n(3)  An infringement notice is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ."]
["s243A \nN/A","Section 243A lists the matters that must be included in an infringement notice",null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,null,"This provision provides that an infringement notice is payable to the WorkCover Tasmania Board."]
["s243B\nN/A","Section 243B provides for the process of extending the time to pay an infringement notice. "]
["s243C\nN/A","\nSection 243C  Sets out the process for a regulator to withdraw an infringement notice"]
["s243D \nN/A","Section 243D has the effect that the payment of the infringement discharges the person for any further liability and proceedings. \n"]
["s243E\nN/A","Section 243E sets out the effect of the division including that it  does not require an infringement notice to be given to a person for an alleged contravention or affect the liability of a person for an alleged offence.\n"]
["Division 4 Offences by bodies corporate "]
["244 Imputing conduct to bodies corporate\n(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate 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 body corporate.\n(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.\n(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth Act has not adopted section 244 of the Model Act. Instead it notes that corporate criminal responsibility is dealt with in Part 2.5 of the Criminal Code.",null,null,null,null,null,"In accordance with the jurisdictional note the ACT Act has not included this section as the Criminal Code 2002 (ACT) already provides for this. The section instead includes three notes that state that:\n- a physical element of an offence consisting of conduct is taken to be committed by a corporation if it it is committed by an employee, agent or officer of the corporation acting within the actual or apparent scope of their employment or within their actual or apparent authority \n- Fault elements for corporations are set out in Criminal Code sections 51 and 52\n- Mistake of fact in relation to corporations is set out in Criminal Code section 53. ",null,null,null,null,null,null,null,null,"In accordance with the jurisdictional note the Act does not utilise this provision as Part IIAA Division 5 of the Criminal Code deals with the issue of imputing conduct to bodies corporate. "]
["Division 5 The Crown"]
["245 Offences and the Crown\n(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.\n(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.\nNote\nSee the jurisdictional note in the Appendix.\n(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.\n(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.","In accordance with the jurisdictional note the provision is adjusted to refer to the Commonwealth instead of the Crown. ",null,null,null,null,null,"In accordance with the jurisdictional note the provision is adjusted to refer to the Territory instead of the Crown. The division heading is also changed to read the 'Territory'.\n\nThe ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"In accordance with the jurisdictional note the provision is varied to refer to the 'State' Commonwealth and other States' instead of the Crown. "]
["246 WHS civil penalty provisions and the Crown\n(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.\n(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.\nNote\nSee the jurisdictional note in the Appendix.\n(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.","In accordance with the jurisdictional note the provision is adjusted to refer to the Commonwealth instead of the Crown. ",null,null,null,null,null,"In accordance with the jurisdictional note the provision is adjusted to refer to the Territory instead of the Crown. ",null,null,"In accordance with the jurisdictional note the provision is varied to refer to the 'State' Commonwealth and other States' instead of the Crown. "]
["247 Officers\n(1) A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act.\n(2) A Minister of a State or the Commonwealth is not in that capacity an officer for the purposes of this Act.","In accordance with the jurisdictional note fo s 10 the provision is adjusted to refer to the Commonwealth instead of the Crown. ",null,null,null,null,null,"In accordance with the jurisdictional note the provision is adjusted to refer to the Territory instead of the Crown.",null,null,"In accordance with the jurisdictional note the provision is varied to refer to the 'State' Commonwealth and other States' instead of the Crown. "]
["248 Responsible agency for the Crown\n(1) A provisional improvement notice, improvement notice, prohibition notice, non-disturbance notice, infringement 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.\n(2) If an infringement notice is to be served on the Crown for an offence against this Act, the responsible agency may be specified in the infringement notice.\n(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.\n(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.\n(5) The person prosecuting the offence or bringing the proceedings may change the responsible agency during the proceedings with the court's leave.\n(6) In this section, the responsible agency:\n(a) in relation to a notice referred to in subsection (1) is:\n(i) in the case of a provisional improvement notice, improvement notice or infringement notice, the agency of the Crown the acts or omissions of which are alleged to contravene this Act;\n(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);\n(iii) in the case of a non-disturbance notice, the agency of the Crown with the management and control of the workplace;\n(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\n(b) in relation to an offence or proceedings for a contravention of this Act, is the agency of the Crown:\n(i) the acts or omissions of which are alleged to constitute the offence or contravention; or\n(ii) if that agency has ceased to exist, that is the successor of that agency; or\n(iii) if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.","In accordance with the jurisdictional note for s 10 the provision is adjusted to refer to the Commonwealth instead of the Crown. ",null,null,"Section 248 of the NSW Act replaces the reference to an \"infringement notice\" with a reference to a \"penalty notice\" . This reflects the fact the NSW Act refers to 'penalty notices' rather than 'infringement notices' in section 243.\n\n\nAside from this difference, section 248 of the model WHS Act is consistent with the equivalent provision in the model WHS Act.",null,null,"In accordance with the jurisdictional note for section 243, the ACT has amended section 248(1) to clarify that it refers to an infringement notice given or served under the Magistrates Court 1930 (ACT). \n\nThe ACT has adjusted the provision to refer to the Territory instead of the Crown. ",null,null,"Queensland has varied  the provision to refer to the State Commonwealth and another State instead of the Crown. This is consistent with previous provisions.",null,null,"Subsection (6)(b)(iii) of the SA Act has replaced 'the court' with 'a court with jurisdiction to hear the relevant proceedings'.  This is a minor variation and does not change the operation of the provision. "]
["Division 6 Public Authorities"]
["249 Application to public authorities that are bodies corporate\nThis Division applies only to public authorities that are bodies corporate.",null,null,null,null,null,null,null,null,null,"The Act extends the division to public authorities that are local governments. The Queensland Act provides that proceedings may be taken against a local government and a local government may be prosecuted and punished as if it were a body corporate."]
["250 Proceedings against public authorities\n(1) Proceedings may be brought under this Act against a public authority in its own name.\n(2) Nothing in this Division affects any privileges that a public authority may have under the Crown.",null,null,null,null,null,null,null,null,null,"Inserts subsection (1A) to reflect that the division also applies to local governments."]
["251 Imputing conduct to public authorities\n(1) For the purposes of this Act, any conduct engaged in on behalf of a public authority by an employee, agent or officer of the public authority 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 public authority.\n(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the public authority for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.\n(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against the public authority for that offence if the person referred to in subsection (1) made that mistake of fact."]
["252 Officer of public authority\nA person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act.",null,null,null,"The NSW WHS Act contains an additional subsection under 252(2). This subsection provides that a Minister of a State or the Commonwealth is not in that capacity an officer of a public authority for the purposes of the Act.  This is consistent with subsection 247(2).",null,null,null,null,null,null,null,null,null,null,null,"Additional subsection 252(2) provides that a Minister of a State or Commonwealth is not and officer of a public authority for the purposes of the Act.  This is consistent with s 247(2) of the NT Act.  "]
["253 Proceedings against successors to public authorities\n(1) Proceedings for an offence against this Act that were instituted against a public authority before its dissolution, or that could have been instituted against a public authority if not for its dissolution, may be continued or instituted against its successor if the successor is a public authority.\n(2) An infringement notice served on a public authority for an offence against this Act is taken to be an infringement notice served on its successor if the successor is a public authority.\n(3) Similarly, any penalty paid by a public authority in relation to an infringement notice is taken to be a penalty paid by its successor if the successor is a public authority.",null,null,null,"Section 248 of the NSW Act replaces the reference to an \"infringement notice\" with a reference to a \"penalty notice\". This reflects the fact the NSW Act created a 'penalty notice' regime rather than 'infringement notice' regime in section 243."]
["Division 7 WHS civil penalty provisions "]
["254 When is a provision a WHS civil penalty provision\n(1) A subsection of Part 7 (or a section of Part 7 that is not divided into subsections) is a WHS civil penalty provision if:\n(a) the words \"WHS civil penalty provision\" and 1 or more amounts by way of monetary penalty are set out at the foot of the subsection (or section); or \n(b) another provision of Part 7 specifies that the subsection (or section) is a WHS civil penalty provision.\n(2) A subregulation (or a regulation that is not divided into subregulations) is a WHS civil penalty provision if:\n(a) the words \"WHS civil penalty provision\" and 1 or more amounts by way of monetary penalty are set out at the foot of the subregulation (or regulation); or\n(b) another provision of the regulations specifies that the subregulation (or regulation) is a WHS civil penalty provision.",null,null,null,"Minor variation to subsection (2) as references to 'subregulation' and 'regulation' is replaced with 'subclause' and 'clause'. This variation likely reflects NSW drafting practices. ",null,null,"Refers to  \"subsection\" rather than a \"subregulation\" but does not change the meaning of the section. \n\nThe section includes the headings of other sections when they are referenced.",null,null,"Refers to  \"subsection\" rather than a \"subregulation\" but does not change the meaning of the section. "]
["255 Proceedings for contravention of WHS civil penalty provision\nSubject to this Division, proceedings may be brought in a court against a person for a contravention of a WHS civil penalty provision.",null,null,null,"Minor variation as the NSW Act refers to the Local Court and the District Court as the courts in which proceedings may be commenced.",null,null,null,null,null,"Subsections 255(2) and (3) set out information about the penalties imposed against a body corporate.  A body corporate who contravenes a civil penalty provision the value of the penalty is calculated under the Penalties and Sentences Act 1992 s 181B. \n\nSubsection 254(1) also refers to the Magistrates Court rather than a 'court'.",null,null,"The SA Act has replaced the word 'court' with 'SAET'. ",null,null,"Minor variation as it replaces the word 'court' with the Work Health Court."]
["256 Involvement in contravention treated in same way as actual contravention\n(1) A person who is involved in a contravention of a WHS civil penalty provision is taken to have contravened that provision.\n(2) A person is involved in a contravention of a civil penalty provision if, and only if, the person:\n(a) has aided, abetted, counselled or procured the contravention; or\n(b) has induced the contravention, whether by threats or promises or otherwise; or\n(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or\n(d) has conspired with others to effect the contravention."]
["257 Contravening a civil penalty provision is not an offence\nA contravention of a WHS civil penalty provision is not an offence."]
["258 Civil proceeding rules and procedure to apply\nA court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a contravention of a WHS civil penalty provision.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act states that section 258 applies 'despite section 32 of the South Australian Employment Tribunal Act 2014'. \n\nSection 32 of the South Australian Employment Tribunal Act 2014 (SA) sets out the principles governing hearings in the SAET. When sitting as the SA Employment Court, it has discretion to determine the extent to which the rules of evidence and procedure will apply.\n\nSection 258 of the SA WHS Act removes this discretion and states that rules of evidence and procedure must apply to civil penalty provision hearings. "]
["259 Proceeding for a contravention of a WHS civil penalty provision\n(1) In a proceeding for a contravention of a WHS civil penalty provision, if the court is satisfied that a person has contravened a WHS civil penalty provision, the court may:\n(a) order the person to pay a monetary penalty that the court considers appropriate; and\n(b) make any other order that the court considers appropriate, including an injunction.\n(2) A monetary penalty imposed under subsection (1) must not exceed the relevant maximum amount of monetary penalty specified under Part 7 or the regulations in relation to a contravention of that WHS civil penalty provision.",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 amended subsection 259(2) to include a reference to Part 5 Division 7A. The effect being that a penalty cannot exceed 100 penalty units for contravening a Commission's order (s102C).",null,null,"The SA Act has replaced the word 'court' with 'SAET' where it appears in this provision."]
["260 Proceeding may be brought by the regulator or an inspector\nProceedings for a contravention of a WHS civil penalty provision may only be brought by:\n(a) the regulator; or\n(b) an inspector with the written authorisation of the regulator (either generally or in a particular case).",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 amended the provision to provide that only the WHS prosecutor can bring proceedings. This reflects the fact the WHS prosecutor has taken over the regulators function to conduct and defend proceedings."]
["261 Limitation period for WHS civil penalty proceedings\nProceedings for a contravention of a WHS civil penalty provision may be brought within 2 years after the contravention first comes to the notice of the regulator.",null,null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Legislation Amendment Act 2017 amended the provision to provide that only the WHS prosecutor can bring proceedings. This reflects the fact the WHS prosecutor has taken over the regulators function to conduct and defend proceedings."]
["262 Recovery of a monetary penalty\nIf the court orders a person to pay a monetary penalty:\n(a) the penalty is payable to the [State]; and\n(b) the [State] may enforce the order as if it were a judgment of the court.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,null,null,null,"Refers to the Territory as the 'State'",null,null,null,null,null,"The SA Act included the words 'in connection with proceedings before SAET for the purposes of this division' in the chapter. This is unlikely to change the meaning or operation of the provision. \n\nAlso replaces the word 'court' with 'SAET'.",null,null,"Refers to the Territory as the 'State'"]
["263 Civil double jeopardy\nA court must not make an order against a person under section 259 for contravention of a WHS civil penalty provision if an order has been made against the person under a civil penalty provision under an Act of the Commonwealth or a State in relation to conduct that is substantially the same as the conduct constituting the contravention.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act has replaced the word 'court' with 'SAET'. "]
["264 Criminal proceedings during civil proceedings\n(1) Proceedings against a person for a contravention of a WHS civil penalty provision are stayed if:\n(a) criminal proceedings are commenced or have already commenced against the person for an offence; and\n(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.\n(2) The proceedings for the order may be resumed if the person is not convicted or found guilty of the offence. Otherwise, the proceedings for the order are dismissed.",null,null,null,null,null,null,"Divides subsection 264(2) into two sections. However meaning of the provision remains unchanged.",null,null,"Divides subsection 264(2) into two sections. However meaning of the provision remains unchanged.",null,null,null,null,null,"Divides subsection 264(2) into two sections. However meaning of the provision remains unchanged.",null,null,"Divides subsection 264(2) into two sections. However meaning of the provision remains unchanged."]
["265 Criminal proceedings after civil proceedings\nCriminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a WHS civil penalty provision regardless of whether an order has been made against the person under section 259."]
["266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings\n(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:\n(a) the individual previously gave the information or produced the documents in proceedings against the individual for a contravention of a WHS civil penalty provision (whether or not the order was made); and\n(b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention of the WHS civil penalty provision.\n(2) However, this does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the contravention of the WHS civil penalty provision."]
["Division 8 Civil liability not affected by this Act"]
["267 Civil liability not affected by this Act\nExcept as provided in Part 6 and Part 7 and Division 7 of this Part, nothing in this Act is to be construed as:\n(a) conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act; or\n(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or\n(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be brought, in relation to breaches of duties or obligations imposed by the regulations.",null,null,null,null,null,null,null,null,null,null,null,null,"The SA Act has inserted the words 'with relation' instead of 'in relation' in paragraph (c). Does not change the meaning of the provision.",null,null,null,null,null,null,null,null," Clarke v South East Sydney Local Health District [2018] NSWSC 66 at [33]: \"The plaintiff also alleges that SES Local Health District breached the Work Health and Safety Act 2011 (NSW) in various respects. Even accepting for the purposes of this application that any such breach could be made out, it would not, of itself, be actionable. Section 267 provides that, with exceptions which are not presently material, nothing in the Work Health and Safety Act is to be construed as “conferring a right of action in civil proceedings in relation to a contravention of a provision of this Act”. It is plain from the wording of the provision and from the High Court’s consideration of its statutory predecessor (s 32(1) of the Occupational Health and Safety Act 2000 (NSW)) Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [42], that the duties imposed on employers by this legislation do not give rise to correlative private rights. \n\nCowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 at [68-69]: The appellant's grounds of appeal contended that the code of practice imposed an \"obligation\" on the respondent to carry out a risk assessment of the appellant's system of work. This relied upon the codes of practice under the WHS Act, targeted at the standard of care. The Supreme Court found that it was not open to plead breach of the obligation as a separate cause of action having regard to the terms of s 267(a).  The Court reasoned that it could have been pleaded as a particular of negligence, however this too might have been precluded by s 267(b).  \n\nFischetti v Classic Constructions (Aust) Pty Ltd [2013] ACTSC 210 at  [81]-[82]: The Supreme Court reasoned that a failure to comply with the OHS (Manual Handling) Regulation 1997 (ACT) was to be pleaded as a particular of negligence, rather than the independent tort of breach of statutory duty which is unavailable due to s 267 of the WHS Act.\n"]

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["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Division 1 General provisions"]
["268 Offence to give false or misleading information\n(1) A person must not give information in complying or purportedly complying with this Act that the person knows:\n(a) to be false or misleading in a material particular; or\n(b) omits any matter or thing without which the information is misleading.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(2) A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without:\n(a) indicating the respect in which it is false or misleading and, if practicable, providing correct information; or\n(b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:\n(i) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and (ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) Subsection (2) places an evidential burden on the accused to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth does not include this provision but instead relies on Part 7.4 of the Criminal Code which outlines offences dealing with false and misleading information",null,null,"In accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The ACT Act does not adopt section 268. Instead it includes a note that refers to Criminal Code sections 338 and 339, which set out offences for providing false or misleading information or producing false or misleading documents.\n\nAlthough only expressly stated to apply to the Commonwealth, the ACT follows the jurisdictional note for this section. ",null,null,"In accordance with the additional jurisdictional notes, the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 100 units and no distinction is made between individuals and body corporates. \n\nSection 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 (Qld) define a penalty unit.",null,null,null,null,null,"Additional subsections provide that strict liability (s12B) does not apply to an offence against subsection 268(1) or (2).",null,null,"In accordance with the additional jurisdictional notes the TAS Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["269 Act does not affect legal professional privilege\nNothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege.",null,null,null,null,null,null,"Includes a note that refers to section 171 of the Legislation Act which deals with client legal privilege"]
["270 Immunity from liability\n(1) An inspector, or other person engaged in the administration of this Act, incurs no civil liability for an act or omission done or omitted to be done in good faith and in the execution or purported execution of powers and functions under this Act.\n(2) A civil liability that would, but for subsection (1), attach to a person, attaches instead to the [State].\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,null,null,null,"Refers to the 'Territory' in subsection 270(2). Also includes a minor drafting variation, replacing 'but for subsection (1)' with 'apart from this section'.  This variation is unlikely to change the meaning of the model section. "]
["271 Confidentiality of information\n(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).\n(2) The person must not do any of the following:\n(a) disclose to anyone else:\n(i) the information; or\n(ii) the contents of or information contained in the document;\n(b) give access to the document to anyone else;\n(c) use the information or document for any purpose.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.\n(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document:\n(a) about a person, with the person's consent; or\n(b) that is necessary for the exercise of a power or function under this Act; or\n(c) that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use:\n(i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or\n(ii) is necessary for the administration or enforcement of another Act prescribed by the regulations; or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or\n(iv) is necessary for the recognition of authorisations under a corresponding WHS law; or\n(v) is required for the exercise of a power or function under a corresponding WHS law; or\n(d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or\n(e) that is required or authorised under a law; or\n(f) to a Minister.\n(4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless:\n(a) the disclosure is made with the consent of the complainant; or\n(b) the disclosure is required under a law.\nMaximum penalty:\nIn the case of an individual—$10 000.\nIn the case of a body corporate—$50 000.","The Commonwealth Act has varied subsection 271(4) to expressly provide that the prosecution must prove the defendant knew or was reckless to the fact that he or she was disclosing the complainant's name to the person to whom the complaint relates.\n\nIn accordance with the additional jurisdictional notes the, Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.\n",null,null,"The NSW WHS Act has varied s 271 by inserting s 271(3A) which specifies that any information or document, lawfully obtained or accessed by a person exercising a power or function under this Act may be disclosed or given under s 271(3)(c)(v) to a correspondence regulator. This can include but is not limited to information provided, or a document produced, under s 155 or Part 9 or information or a document that is personal information or health information about an individual despite the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.\n\nIn accordance with the additional jurisdictional note, the NSW WHS Act replaces the reference to $10 000 with 115 penalty units and $50,000 with 575 penalty units. ",null,null,"The ACT has varied section 271(4) into two subsections (4) and (5). Similar to the Commonwealth, the ACT Act provides an additional element at subsection (4)(c), that the defendant has to know or is reckless to the fact that they are disclosing the complainant's name to the person to whom the complaint relates. \n\nIn accordance with the additional jurisdictional notes, the ACT Act has added a note to clarify that strict liability applies to each element of the offence (s12A). \n\nThe ACT Act also includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 100 units and no distinction is made between individuals and body corporates. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"Includes a note that states strict liability (s12B) applies to the offence under s 271(2). \nThe NT Act requires the name and address of the compliant to be intentionally disclosed and for the accused to know or be reckless to the fact that he or she disclosed this information to the person to whom the compliant relates. ",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
[]
["271A\nN/A",null,null,null,"NSW have an additional provision under section 271A, which provides for the sharing of information between the regulators for the purpose of assisting in the exercise of functions under the WHS Act or the Work Health and Safety (Mines and Petroleum Sites) Act 2013. The regulators are set out in Schedule 2 item 1 and include SafeWork NSW and the regulator under the Work Health and Safety (Mines and Petroleum Sites) Act 2013. \n\nThe provision was first inserted by the Work Health and Safety Legislation Amendment Act 2011 and subsequently amended in 2015. "]
["272 No contracting out\nA term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.",null,null,null,null,null,null,"The ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104)."]
["272A",null,null,null,"Section 272A of the NSW WHS Act provides a prohibition on certain insurance or indemnity arrangements. Under this section, a person must not without reasonable excuse, enter into a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under this Act. Also, s 272A provides that a person must not provide insurance or a grant of indemnity for liability for a monetary penalty under this act or take the benefit of a contract of insurance or other arrangement under which the person or another person is covered for liability for a monetary penalty under this Act a grant of indemnity for liability for a monetary penalty under this Act."]
["272B",null,null,null,"Section 272B of the NSW WHS Act provides circumstnaces where persons who are officers of a body corporate can be liable in relation to offences under s 272A of the NSW WHS Act. "]
["273 Person not to levy workers\nA person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.\nMaximum penalty:\nIn the case of an individual—$5000.\nIn the case of a body corporate—$25 000.","In accordance with the additional jurisdictional notes the Commonwealth Act omits the word 'maximum' for all penalty offences. The provision is intended to have the same operation as the model WHS Act, in accordance with the explanatory memorandum.",null,null,"In accordance with the additional jurisdictional notes the NSW WHS Act replaces the reference to $5000 with 60 penalty units and the reference to $25,000 with 290 penalty units. ",null,null,"In accordance with the additional jurisdictional notes, the provision includes a note clarifiing that  strict liability applies to each offence (s12A).",null,null,"In accordance  with the additional jurisdictional notes the Queensland Act expresses the maximum penalty in penalty units.  The maximum penalty is 50 units and no distinction is made between individuals and body corporates unike the model WHS Act. Section 36 of the Acts Interpretation Act 1954 and section 5 of the Penalties and Sentences Act 1992 define a penalty unit.",null,null,null,null,null,"In accordance with the additional jurisdictional notes the NT Act has added a note to clarify that strict liability applies to each offence (s 12B).",null,null,"In accordance with the additional jurisdictional notes the Tas Act omits the word 'maximum' and replaces it with the phrase 'a fine not exceeding' is inserted. "]
["273A \nN/A","The Commonwealth has inserted section 275A which confers jurisdiction in any civil matter on the Federal Court of Australia and the Federal Magistrates Court. Certain matters are dealt with in the Fair Work Division of the Courts. Civil matters may also be heard in State and Territory Supreme Courts and prescribed courts. No jurisdiction is conferred in relation to criminal matters as these are dealt with by State and Territory Courts under the Judiciary Act 1903 (para 891 Explanatory Memorandum to the Work Health and safety Bill 2011).",null,null,null,null,null,null,null,null,"The Work Health and Safety and Other Amendment Act 2017 inserted section 273A which  applies in a proceeding against a PCBU for an offence under the Act. It provides that evidence that the business or undertaking had a WHSO or HSR in place at the time of the offence is admissible in proceedings as evidence of whether or not a duty under the Act has been complied with, but is not conclusive evidence."]
["273B\nN/A","Section 275B provides for the application of the Legislative Instruments Act 2003 and provides a list of what will be legislative instruments including approved code of practices. "]
["Division 2 Codes of practice"]
["274 Approved codes of practice\n(1) The Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice.\n(2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice, variation or revocation was developed by a process that involved consultation between:\n(a) the Governments of the Commonwealth and each State and Territory; and\n(b) unions; and\n(c) employer organisations.\n(3) A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether:\n(a) with or without modification; or\n(b) as in force at a particular time or from time to time.\n(4) An approval of a code of practice, or a variation or revocation of an approved code of practice, takes effect when notice of it is published in the Government Gazette or on such later date as is specified in the approval, variation or revocation.\n(5) As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Minister must ensure that notice of the approval, variation or revocation is published in the Government Gazette and a newspaper circulating generally throughout the [State].\n(6) The regulator must ensure that a copy of:\n(a) each code of practice that is currently approved; and\n(b) each document applied, adopted or incorporated (to any extent) by an approved code of practice,\nis available for inspection by members of the public without charge at the office of the regulator during normal business hours.\nNote\nSee the jurisdictional note in the Appendix.","The Commonwealth has not included subsection 274(4). Instead it sets out a note at the end of subsection (3) that states an approved code of practice under the Commonwealth Act is a legislative  instrument (s273B(1)) and will be registered on the Federal Register of Legislation. This variation reflects the process for making legislative instruments in the Commonwealth.\n\nIn accordance with the jurisdictional note, the Commonwealth Act replaces the reference to [State] with 'Commonwealth'.",null,null,"The NSW Act has an Editorial Note which refers to references for approved codes of practice published or varied under this section.\n\nAside from the above, section 274 of the NSW WHS Act is the same as the equivalent provision in the model WHS Act.",null,null,"While subsection (1) does not expressly provide the Minister power to vary or revoke an approved code of practice (as set out in the model WHS Act) a note informs the reader that the power to approve a code also includes the power to amend or repeal under s 46 of the Legislation Act. As such subsection (!) under the ACT Act has the same effect as subsection (1) of the model WHS Act. \n\nSubsection (2) of the ACT differs from the model WHS Act in that the ACT Minister cannot approve a code of practice in relation to the management control or removal of asbestos or asbestos containing material. The model WHS Act does not impose this limitation. \n\nThe ACT does not include subsection (4) as set out in the model WHS Act. Instead the subsection states that an approval of a code is a notifiable instrument. The notes that follow informs the reader that a notifiable instrument must be notified under the Legislation Act and an amendment or repeal of an approved code is also a notifiable instrument. \nThis variation reflects the process for making legislative instruments in the ACT. \n\nSubsection 274(5) is also varied to provide that the Minister must ensure notice of approval is publically notified. A note states that public notice is defined in the Legislation Act. ",null,null,"The Queensland Act varies the procedure for approving codes of practice by requiring that approval of a code  or of  an instrument removing or varying a code has no effect unless the Minister gives notice of its making (s274(4)). This notice is subordinate legislation (s 274(4A)). The Queensland Act also specifies the commencement of the code or instrument in s 274(4B).\n\nThe Queensland Act also provides that codes of practices expire after 5 years. There is no equivalent provision in the model Act (s 274(4C)). ",null,null,"The SA Act varies the standard procedure for approved codes of practice to require, in addition to the requirements in subsection (2) of the model Act, that the Minister may only approve, vary or revoke a code if acting upon the approval of the Consultative Council (defined in section 4). \n\nSubsections (3) and (3A) set out a process that the Consultative Council must follow on each occasion where it is required to make a recommendation. These consultation requirements include consulting with the Small Business Commissioner Model Act subsection (3) and subsequent subsections are renumbered. \n\nThe SA Act has also inserted subsections (8)-(11), which provide that an approved code is subject to disallowance and outlines the disallowance process.",null,null,"Minor variation with the term 'Government Gazette' being replaced with 'Gazette'. Variation has no practical difference. ",null,null,"The Tasmania Act includes an additional provision that provides that the notice of approval is not a statutory rule or subordinate legislation under the relevant Acts. "]
["275 Use of codes of practice in proceedings\n(1) This section applies in a proceeding for an offence against this Act.\n(2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.\n(3) The court may:\n(a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and \n(b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.\nNote\nSee section 18 for the meaning of reasonably practicable.\n(4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.",null,null,null,null,null,null,"There is a note which informs the reader that under section 104 of the Legislation Act 2001  a reference to 'Act' includes a reference to instruments made under the Act or applied adopted or incorporated by the Act."]
["Division 3 Regulation-making powers"]
["276 Regulation-making powers\n(1) The Governor in Council may make regulations in relation to:\n(a) any matter relating to work health and safety; and\n(b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.\n(2) Without limiting subsection (1), the regulations may make provision for or in relation to matters set out in Schedule 3.\n(3) The regulations may:\n(a) be of general or limited application; or\n(b) differ according to differences in time, place or circumstance; or\n(c) leave any matter or thing to be, from time to time, determined, applied or approved by the regulator, an inspector or any other prescribed person or body of persons; or\n(d) apply, adopt or incorporate any matter contained in any document formulated, issued or published by a person or body whether:\n(i) with or without modification; or\n(ii) as in force at a particular time or as in force or remade from time to time; or\n(e) prescribe exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed; or\n(f) allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions (if any) prescribed or, if the regulations allow, on the terms and conditions (if any) determined by the regulator; or\n(g) prescribe fees for doing any act or providing any service for the purposes of this Act and prescribe the circumstances and way in which fees can be refunded, waived or reduced; or\n(h) prescribe a penalty for any contravention of the regulations not exceeding $30 000; or\n(i) prescribe an infringement penalty for each infringement offence which must not exceed 20 per cent of the penalty for the offence which is prescribed as the infringement offence.\nNote\nSee the jurisdictional notes in the Appendix.","In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to the Governor-General.",null,null,"In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to the Governor.\n\nThe NSW Act does not include subsection 276(3)(i).  \n\nThe NSW WHS Act amends s 276(3)(h) to replace the reference to $30,000 with 345 penalty units. \n\nTHe NSW WHs ACt includes a provision s276(3)(g1) concerning fee waivers, reductions, postponements or refunds.",null,null,"In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to the Executive. \n\nThe ACT Act does not include (3)(g) or(i) as matters which the regulation make prescribe. Both of these paragraphs relate to momentary matters, being  fees or penalties.",null,null,"This provision differs from the model WHS Act in that it does not specifically provide for regulations to be made in relation to matters or things required or permitted by the Act to be prescribed or that is necessary or convenient. However this variation is unlikely to have a practical effect given that regulations can be made for any matter related to work health and safety. \n\nThe Queensland Act varies s 276(3) as it only includes provisions similar to (3)(f),(g) and (h). \nConsistent with the jurisdictional note Queensland inserts provisions that clarify that s276(1) does not limit powers provided in the Statutory Instruments Act 1992 and to remove doubt as to the operation of certain provisions in that Act.   \n\n ",null,null,"In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to the Governor. \n\nThe words 'for or' are omitted from subsection (2). This does not change the meaning of the subsection. \n\nThe SA Act varies subsection (3)(i) to enable regulations to prescribe offences that are to be taken as infringement offences. This is not provided in the model Act. \n\nSubsection (3)(i) also adds an additional subparagraph (ii), that provides that the regulations can set a expiation fee for each infringement offence, which must not exceed 20 percent of the penalty for the offence.  This reflects the fact an inspector can issue expiation notices under the SA Act. Subparagraph (ii) is similar to subsection (3)(i) of the model Act.",null,null,"In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to the Administrator. \n\nSubsection 276(3)(i) of the NT Act states that if regulations are made as mentioned in s 65D of the Interpretation Act (subordinate legislation may provide for infringement notice offences) then the penalty must not exceed 20 percent of the penalty that may otherwise be imposed. This provision has the same effect as the model WHS Act provision. \n",null,null,"In accordance with the jurisdictional note the reference to Governor in Council is replaced with a reference to Governor. ",null,null,"Empire Waste v District Court of NSW [2013] NSWCA 394: The validity of Regulations made under the WHS Act depend on the construction of the enabling provisions in the WHS Act. The term ‘necessary or convenient’ in paragraph 276(1)(b) does not authorise the making of regulations that confer jurisdiction on a court (at [70]-[71]).  Similarly, ‘any matter relating to work health and safety’ in paragraph 276(1)(a) does not authorise the making of regulations that confer jurisdiction on a court . This would ‘go beyond the field marked out by the Act’ (at [75], [77])."]
["277 \nN/A",null,null,null,"                ",null,null,"This provision enables the Minister to approve forms for the Act. An approved form is a notifiable instrument. ",null,null,null,null,null,"The SA Act provided for a review of the Act at 1 and 3 years after commencement. Despite having no ongoing operation this provision has not yet been repealed or amended.",null,null,null,null,null,"This provision sets out which Minster and Department is responsible for the administration of the Act."]
["278\nN/A",null,null,null,null,null,null,"This provision enables the Minister to determine fees for this Act. A determination is a disallowable instrument"]

{"sheet":"Parts 15 and 16","index":17,"n_rows":3,"n_cols":23,"rows_kept":3,"cut":false,"hidden":false,"merged":[[2,19,2,21],[2,1,2,3],[2,4,2,6],[2,7,2,9],[2,10,2,12],[2,13,2,15],[2,16,2,18],[0,19,0,21],[1,1,1,3],[1,4,1,6],[1,7,1,9],[1,10,1,12],[1,13,1,15],[1,16,1,18],[1,19,1,21],[0,1,0,3],[0,4,0,6],[0,7,0,9],[0,10,0,12],[0,13,0,15],[0,16,0,18]]}
["Model WHS Act","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
[]
["Parts 15-16"," ",null,null,null,null,null,null,null,null,"Part 15 repeals previous safety legislation and Part 16 sets out transitional provisions. ",null,null,null,null,null,"Part 15 sets out transitional provisions for the WHS Act."]

{"sheet":"Schedules","index":18,"n_rows":26,"n_cols":23,"rows_kept":26,"cut":false,"hidden":false,"merged":[[7,1,7,3],[7,4,7,6],[7,7,7,9],[7,10,7,12],[7,13,7,15],[7,16,7,18],[4,19,4,21],[4,22,4,26],[4,1,4,3],[4,4,4,6],[4,7,4,9],[4,10,4,12],[4,13,4,15],[4,16,4,18],[6,1,6,3],[6,4,6,6],[6,7,6,9],[6,10,6,12],[6,13,6,15],[7,19,7,21],[6,22,6,26],[5,1,5,3],[5,4,5,6],[5,7,5,9],[3,4,3,6],[3,7,3,9],[3,10,3,12],[3,13,3,15],[3,16,3,18],[3,19,3,21],[3,22,3,26],[2,1,2,3],[2,4,2,6],[2,7,2,9],[2,10,2,12],[2,13,2,15],[2,16,2,18],[8,0,17,0],[8,1,17,3],[8,4,17,6],[18,1,18,3],[18,4,18,6],[0,19,0,21],[0,22,0,26],[1,1,1,3],[1,4,1,6],[1,7,1,9],[1,10,1,12],[1,13,1,15],[1,16,1,18],[1,19,1,21],[1,22,1,26],[0,1,0,3],[0,4,0,6],[0,7,0,9],[0,10,0,12],[0,13,0,15],[0,16,0,18],[2,19,2,21],[2,22,2,26],[3,1,3,3],[19,1,19,3],[19,4,19,6],[8,7,17,9],[8,10,17,12],[8,22,17,26],[18,7,18,9],[18,10,18,12],[18,13,18,15],[18,16,18,18],[18,19,18,21],[8,13,17,15],[19,7,19,9],[19,10,19,12],[19,13,19,15],[8,16,17,18],[8,19,17,21],[19,22,19,26],[19,16,19,18],[24,16,24,18],[24,19,24,21],[24,22,24,26],[25,7,25,9],[21,10,21,12],[25,13,25,15],[25,16,25,18],[25,19,25,21],[24,1,24,3],[24,4,24,6],[24,7,24,9],[24,10,24,12],[24,13,24,15],[25,1,25,3],[25,4,25,6],[25,10,25,12],[22,22,22,26],[23,22,23,26],[25,22,25,26],[22,16,22,18],[22,19,22,21],[23,1,23,3],[23,4,23,6],[23,7,23,9],[22,1,22,3],[22,4,22,6],[22,7,22,9],[22,10,22,12],[22,13,22,15],[20,19,20,21],[20,22,20,26],[21,1,21,3],[21,4,21,6],[21,7,21,9],[21,13,21,15],[21,16,21,18],[21,19,21,21],[20,1,20,3],[20,4,20,6],[20,7,20,9],[20,10,20,12],[20,13,20,15],[21,22,21,26],[20,16,20,18],[5,10,5,12],[5,13,5,15],[5,16,5,18],[5,19,5,21],[5,22,5,26],[6,16,6,18],[6,19,6,21],[23,10,23,12],[23,13,23,15],[23,16,23,18],[23,19,23,21],[18,22,18,26],[7,22,7,26]]}
["Model Act ","Commonwealth",null,null,"NSW",null,null,"ACT",null,null,"Queensland",null,null,"South Australia",null,null,"Northern Territory",null,null,"Tasmania",null,null,"Case law"]
["Schedule 1 Application of Act"]
["The application of the Act to dangerous goods and high risk plant\n(1) This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work.\n(2) For the purposes of clause 1:\n(a) a reference in this Act to carrying out work includes a reference to the storage or handling of dangerous goods; and\n(b) a reference in this Act to a workplace includes a reference to the premises at or in which the dangerous goods are stored or handled; and\n(c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.\n(3) This Act applies to the operation or use of high risk plant, affecting public safety, even if the plant is not situated, operated or used at a workplace or for use in carrying out work.\n(4) For the purposes of clause 3:\n(a) a reference in this Act to carrying out work includes a reference to the operation and use of high risk plant affecting public safety; and\n(b) a reference in this Act to a workplace includes a reference to any high risk plant affecting public safety and the premises at or in which the plant is situated or used; and\n(c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.\n(5) The operation of this Schedule is subject to any exclusions or modifications prescribed by the regulations.\n(6) In this Schedule:\ndangerous goods means anything prescribed as dangerous goods.\nhigh risk plant means plant prescribed as high risk plant.\nNote\nSee the jurisdictional note in the Appendix.","In accordance with the jurisdictional note the Commonwealth has opted not to regulate high risk plant or dangerous goods. ",null,null,"In accordance with the jurisdictional note NSW has opted to regulate dangerous goods and high risk plant.",null,null,"References to clauses throughout the schedules are changed to sections. \n\nIn accordance with the jurisdictional note the ACT has opted to regulate dangerous goods and high risk plant. \n\nThe ACT has inserted additional provisions to extend the operation of Schedule 1 to non-workplaces which store or handle dangerous goods. \n\nThe ACT Act includes a note that states that a reference to an Act includes a reference to any statutory instrument made or in force under the Act (Legislation Act 2001 (ACT) s 104).",null,null,"In accordance with the jurisdictional note Queensland has opted to regulate dangerous goods and high risk plant.\n\nSchedule 1 also contains extensive provisions dealing with the relationship between the Queensland Act and other Queensland safety legislation.",null,null,"In accordance with the jurisdictional note SA has opted to regulate dangerous goods and high risk plant.",null,null,"In accordance with the jurisdictional note the NT has opted to regulate dangerous goods and high risk plant.\n\nSchedule 1 makes reference to section 12. Section 12 which outlines the scope of the Act states that Schedule 1 applies the WHS Act to the storage and handling of dangerous goods and the operation or use of high risk plant affecting public safety. This provision is similar to item 1 of schedule 1 of the model WHS Act.",null,null,"In accordance with the jurisdictional note Tasmania has opted to regulate dangerous goods and high risk plant."]
["Schedule 2 The Regulator and local tripartite consultation arrangements and other local arrangements"]
["See the jurisdictional note to the appendix","Schedule 2 of the Commonwealth Act deals with the Safety Rehabilitation and Compensation Commission and its functions, Annual Reports to be provided by ComCare and Annual Reports to be provided by other persons.",null,null,"Schedule 2 confers regulator functions on SafeWork NSW.",null,null,"Schedule 2 establishes the Work Safety Council and sets out its functions, membership, terms of appointment and process for meetings. It also establishes the Work Safety Commissioner, functions and other relevant provisions.",null,null,"Schedule 2 additionally provides for the appointment of the WHS prosecutor and other related matters.",null,null,"Schedule 2 continues the existence of the Mining and Quarrying Occupational Health and Safety Committee and includes provisions for its membership and application of funds.",null,null,"Schedule 2 sets out the functions of the Work Health and Safety Council as well as membership, appointment and the process for meetings.",null,null,"Schedule 2 sets out provisions for the appointment of the regulator. It also sets out the functions of the WorkCover Tasmania Board as well as provisions relating to information sharing and confidentiality. "]
["Schedule 2A"]
["\nN/A",null,null,null,null,null,null,null,null,null,"The Queensland Act has organised its provisions dealing with review differently to the Model Act but the substance of the provisions are largely similar. \n\nInstead of setting out the table of reviewable decisions in Part 12, the Queensland Act sets the table out in Schedule 2A. \n\nThe Work Health and Safety and Other Legislation Amendment Act 2017 amended the Schedule to transfer jurisdiction for the review of reviewable decisions from the Queensland Civil and Administrative Tribunal to the Queensland Industrial Relations Commission.\n\nPart 12 Division 4 sets out the procedure for review by the Queensland Industrial Relations Commission. A review by Queensland Civil and Administrative Tribunal will be under Ch 2 Pt 1 Div 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Queensland).\n"]
["Schedule 3 Regulation making powers"]
["Regulation-making powers\n1 Duties\n 1.1 Matters relating to the way in which duties imposed by this Act are to be performed.\n 1.2 Matters relating to the regulation or prohibition of specified activities or a specified class of activities:\n(a) at workplaces or a specified class of workplaces; or\n(b) by a specified class of persons on whom duties or obligations are imposed by this Act, to eliminate or minimise risks to health and safety.\n 1.3 Imposing duties on persons in relation to any matter provided for under the regulations.\n \n2 Incidents\nMatters relating to incidents at workplaces including:\n(a) regulating or requiring the taking of any action to avoid an incident at a workplace or in the course of conducting a business or undertaking; and\n(b) regulating, requiring or prohibiting the taking of any action in the event of an incident at a workplace or in the conduct of a business or undertaking.\n \n3 Plant, substances or structures\nMatters relating to plant, substances or structures, including:\n(a) regulating the storage and handling of plant, substances and structures; and \n(b) regulating or requiring:\n(i) the examination, testing, labelling, maintenance or repair of plant and structures; or\n(ii) the examination, testing, analysis or labelling of any substance.\n\n4 Protection and welfare of workers\nMatters relating to the protection and welfare of workers including:\n(a) regulating or requiring the provision and use of protective clothing or equipment, or rescue equipment, in specified circumstances; and\n(b) regulating or requiring the provision of specified facilities for the welfare of workers at the workplace; and\n(c) matters relating to health and safety in relation to accommodation provided to workers.\n\n5 Hazards and risks\nMatters relating to hazards and risks including:\n(a) the prescribing of standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard; and\n(b) matters relating to safety cases, safety management plans and safety management\nsystems (however described); and\n(c) matters relating to measures to control risks\n\n6 Records and notices\n6.1 The keeping and availability of records of health and safety representatives and deputy health and safety representatives\n6.2 The keeping of records in relation to incidents.\n6.3 The keeping of records of specified activities, matters or things to be kept by specified persons.\n6.4 The giving of notice of or information about specified activities, matters or things to the regulator, an inspector or other specified person.\n\n7 Authorisations\n7.1 Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of Part 4 or the regulations including providing for:\n(a) applications for the grant, issue, renewal, variation, suspension and cancellation of\nauthorisations, including the minimum age to be eligible for an authorisation; and\n(b) the evidence and information to be provided in relation to applications including the provision of statutory declarations; and\n(c) exemptions; and\n(d) variations of authorisations by the regulator whether on application or otherwise; and\n(e) authorisation of persons as trainers and assessors; and\n(f) examination of applicants for authorisations; and\n(g) conditions of authorisations; and\n(h) fees for applications for the grant, issue, renewal and variation of authorisations.\n7.2 The recognition of authorisations under corresponding WHS laws and exceptions to recognition.\n7.3 The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations.\n\n8 Work groups\nMatters relating to work groups and variation of work groups and agreements or variations of agreements relating to the determination of work groups.\n\n9 Health and safety committees and health and safety\nrepresentatives\nMatters relating to health and safety committees and health and safety representatives.\n\n10 Issue resolution\nMatters relating to issue resolution including:\n(a) the minimum requirements for an agreed procedure for resolving an issue; and\n(b) the requirements for a default issue resolution procedure where there is no agreed procedure.\n\n11 WHS entry permits\nMatters relating to WHS entry permits, including providing for:\n(a) eligibility for WHS entry permits; and\n(b) procedures for applications for WHS entry permits and objections to applications for WHS entry permits; and\n(c) conditions of WHS entry permits; and\n(d) the form of WHS entry permits; and\n(e) requirements for training; and\n(f) records of WHS entry permits.\n\n12 Identity cards\nMatters relating to identity cards.\n\n13 Forfeiture\nMatters relating to:\n(a) costs of forfeiture and disposal of forfeited things; and\n(b) disposal of seized things and forfeited things.\n\n14 Review of decisions\nMatters relating to the review of decisions under the regulations including:\n(a) prescribing decisions as reviewable decisions for the purposes of Part 12 or for the\npurposes of the regulations; and\n(b) prescribing procedures for internal and external review of decisions under the\nregulations; and\n(c) conferring jurisdiction on the [designated court or tribunal] to conduct reviews under the regulations.\nNote\nSee the jurisdictional notes in the Appendix.","In accordance with the additional jurisdictional notes, the Fair Work Commission has been identified as the relevant court or authority for clause 14 of Schedule 3.",null,null,"The NSW Act implements Schedule 3 to the Model Act in full. \n\nFor the purposes of clause 14, the NSW Act specifies the Local Court or the Industrial Relations Commission as the designated court or tribunal. \n\nThe NSW Act also adds clause 14(d) which provides that the Civil and Administrative Tribunal has jurisdiction to conduct administrative reviews under the Administrative Decisions Review Act 1997.",null,null,"Minor variations include amending 'any' to 'a' in section 3(c)(ii) and omitting the term \"matters relating to\" in section 4(c). This is likely a drafting preference and does not change the effect of the model WHS Act.\n\nThe Red Tape Reduction Legislation Amendment Act 2016 (ACT) removed the reference to 'statutory declarations'  in section 7.1(b). In most cases where a statutory declaration is required in the ACT a written statement is now acceptable. Part 3.4 of the Criminal Code 2002 (ACT) makes it an offence to make a false or misleading statement. \n\nThe ACT omits the provision that enables the regulations to prescribe fees for applications for the grant, issue, renewal and variation of authorisations (section 7.1(h)). This matter is dealt with in section 278 of the ACT Act.\n\nThe ACT Act has designated the ACAT in section 14(c). ",null,null,"Schedule 3 of the Queensland Act includes an additional item 9A, which specifies that the regulations may make provision for or in relation to work health and safety officers (WHSOs). This amendment was made by the Work Health and Safety and Other Legislation Amendment Act 2017 (Qld).",null,null,"For the purposes of clause 14, the SA WHS Act prescribes the South Australian Employment Tribunal. ",null,null,null,null,null,"For the purposes of clause 14, the Tasmania Act specifies the \"designated court or tribunal\" to be the \"Magistrates Court (Administrative Appeals Division).\""]
[]
[]
[]
[]
[]
[]
[]
[]
[]
["Schedule 4 "]
[null,null,null,null,"This Schedule sets out savings, transitional and other provisions.  This Schedule also sets out provisions consequent on endactment of the Work Health and  Safety Amendment (Review) Act 2020.  and the Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020. ",null,null,null,null,null,null,null,null,"Schedule 4 sets out the process for supplementary panel members for proceedings before the SAET relating to the disqualification of HSRs (s65) or review of decisions under Part 12."]
["Schedule 5"]
[null,null,null,null,"The Fair Trading Legislation Amendment (Miscellaneous) Act 2018 inserted Schedule 5 into the NSW WHS Act. The Schedule repeals the Rural Workers Accommodation Act 1969 and re-enacts sections 5 6 and 8 which require a person who is in control of a rural premises to provide free and suitable accommodation to a rural worker. The Schedule also includes savings provisions.",null,null,null,null,null,"The Queensland Act includes a dictionary at Schedule 5",null,null,"SA includes a Schedule 5 that sets out requirements on the Return to Work Corporation of South Australia to provide certain bodies with information including information about work-related injuries. "]
["Schedule 6"]
[null,null,null,null,null,null,null,null,null,null,null,null,null,"Schedule 6 sets out transitional provisions."]
["Dictionary"]
[null,null,null,null,null,null,null,"The ACT includes a dictionary at the end of the Act, consistent with other ACT legislation."]