2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

An Act to secure and promote work safety by the management of risk, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Work Safety Act 2008.

(1) This Act commences on—

(a) 1 July 2009; or

(b) if, before 1 July 2009, the Minister fixes another day by written notice—the day fixed.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) However, if this Act has not commenced within 18 months beginning on its notification day, it automatically commences on the first day after that period.

(3) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘worker—see section 9.’ means that the term ‘worker’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

(1) The objects of this Act are to—

(a) secure and promote work safety of people at work; and

(b) eliminate, at their source, risks to work safety whether of people at work or others; and

(c) protect people from the risks to work safety resulting from the activities of people at work; and

(d) promote a safe and healthy work environment for people at work that—

(i) protects them from injury and illness; and

(ii) is adapted to provide for their physical and psychological needs; and

(e) foster cooperation and consultation between employers and workers, and organisations representing employers and workers; and

(f) provide a framework for continuous improvement and progressively higher standards of work safety, taking into account changes in technology and work practices.

(2) The objects of this Act are to be implemented in a way that is consistent with the aspirations of the people of the ACT for the maintenance of, and improvement in, the protection of people from risks to work safety.

In this Act:

work safety, of people, means the health, safety and wellbeing of people in relation to work.

In this Act:

risk means exposure to the chance of injury or loss.

1 possible impact on wellbeing of workers from the failure to provide adequate facilities

2 possible broken arm because of a failure to provide adequate safety rails

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

worker means an individual who carries out work in relation to a business or undertaking, whether for reward or otherwise, under an arrangement with the person conducting the business or undertaking.

1 employee

2 independent contractor

3 outworker

4 person doing a work experience placement

5 volunteer

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

employer, of a worker, includes a person who engages the worker to carry out work in the person’s business or undertaking.

1 principal contractor is an employer of a subcontractor

2 host organisation is an employer of a labour hire worker

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

business or undertaking includes—

(a) a not-for-profit business; and

(b) an activity conducted by a local, state or territory government.

In this Act:

workplace means a place where work is, has been, or is to be, carried out by or for someone conducting a business or undertaking.

For this Act, a person in control is—

(a) for premises—anyone who has control of the premises, including anyone with authority to make decisions about the management of the premises; or

(b) for plant or a system—anyone who has control of the plant or system or the operation of the plant or system, including anyone with authority to make decisions about the plant or system or the operation of the plant or system; or

(c) for the design, manufacture, import or supply of plant or a system—anyone who has control of the design, manufacture, import or supply of the plant or system, including anyone with authority to make decisions about the design, manufacture, import or supply; or

(d) anyone else prescribed by regulation.

Note More than 1 person may be a person in control for a duty under this Act (see s 16).

(1) For this Act, a person manages risk in relation to a duty by—

(a) taking reasonably practicable steps—

(i) to identify any risk that might be associated with the duty; and

(ii) to eliminate any risk that might result if the duty is not exercised; and

(iii) if it is not reasonably practicable to eliminate each risk that might result if the duty is not exercised—to minimise each risk; and

(b) informing anyone else who has the duty about the possible risks.

(2) For this section, if someone is required to minimise a risk, the person must do each of the following that is available, in the following order, until the risk is reduced as far as is reasonably practicable:

(a) substitute the thing giving rise to the risk with something that gives rise to a lesser risk;

(b) isolate the thing giving rise to the risk from anyone otherwise put at risk;

(c) minimise the risk by engineering means;

(d) minimise the risk by administrative means;

(e) ensure personal protective and safety equipment is used.

1 put in place safe working practices

2 provide training, instruction or information

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For this Act, each of the following must be considered in working out what are reasonably practicable steps to eliminate or minimise a risk:

(a) the seriousness of the risk;

(b) the availability and suitability of ways to eliminate or minimise the risk;

(c) what the duty holder knows or ought reasonably to know about—

(i) the hazard giving rise to the risk and the risk itself; and

(ii) ways of eliminating or minimising the risk;

(d) the cost of eliminating or minimising the risk;

(e) anything else prescribed by regulation.

(2) Also, a regulation may prescribe what are, or are not, reasonably practicable steps to eliminate or minimise a risk.

(3) In this section:

cost includes burdens and disadvantages.

1 time spent

2 inconvenience

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

To remove any doubt, a person may be subject to more than 1 duty under this Act.

A manufacturer must comply with the duty to ensure a safe workplace (see s 21) and with the manufacturer’s duties (see s 25).

Note 1 A reference to an Act includes a reference to statutory instruments made or in force under the Act, any regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if 2 or more people have the same duty under this Act.

(2) To remove any doubt, each person must comply with the duty whether or not someone else may also be required to comply with the duty.

(3) However, if this Act requires or allows 2 or more people to do something, it is sufficient if 1 of them does the thing.

Both an employer and a building owner have a duty to provide a safe work environment for the workers in a particular building. If the air conditioning breaks down and is fixed by the building owner, the duty has been complied with. There is no requirement for the employer to take further action.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The Minister may, in writing, approve a code of practice (an approved code of practice) for providing practical guidance for this Act.

Note Power given under an Act to make a statutory instrument (including a code of practice) includes power to amend or repeal the instrument (see Legislation Act, s 46 (1)).

(2) Before approving a proposed code of practice, the Minister must consult the council.

(3) An approved code of practice may consist of a code, standard, rule, specification or provision relating to work safety and may apply, adopt or incorporate a law or instrument, or a provision of a law or instrument, as in force from time to time.

Note A statutory instrument may also apply, adopt or incorporate (with or without change) a law or instrument (or a provision of a law or instrument) as in force at a particular time (see Legislation Act, s 47 (1)).

(4) An approved code of practice is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Note 2 An amendment or repeal of an approved code of practice is also a disallowable instrument (see Legislation Act, s 46 (2)).

Note 3 For public notice of code approvals and inspection of codes, see s 215.

In deciding whether a person has complied with a duty under this Act, a decision maker may consider whether a person has complied with an approved code of practice in relation to the duty.

(1) An approved code of practice has no effect to the extent that it is inconsistent with a regulation.

(2) However, an approved code of practice is taken to be consistent with a regulation to the extent that it can operate concurrently with the regulation.

Note For the approval of codes of practice, see s 18.

(1) This section applies to a person conducting a business or undertaking.

1 employer

2 self-employed person

3 municipal corporation

4 subcontractor

5 franchisor

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The person has a duty to ensure work safety by managing risk.

Note Managing risk—see s 14.

(3) Without limiting subsection (2), the person’s duty includes—

(a) providing and maintaining a safe workplace and safe systems of work; and

(b) providing and maintaining plant that is safe and without risk to the health of the person and other people at the business or undertaking; and

(c) ensuring that plant is operated only by people at the business or undertaking who are qualified to operate the plant; and

(d) ensuring the safe use, handling, storage and transport of substances; and

(e) providing adequate facilities for the work safety of the person and other people at the business or undertaking; and

(f) monitoring the work safety of people at the business or undertaking, and the conditions of the workplace, to ensure that work-related illness and injury are prevented; and

(g) keeping the information and records relating to work safety required under this Act, including incident reports and training records, in relation to the business or undertaking; and

(h) providing appropriate information, instruction, training or supervision to people at the business or undertaking to allow them to carry out work safely; and

(i) consulting people at the business or undertaking on matters that directly affect their work safety; and

(j) any other duty prescribed by regulation.

(1) This section applies to a person in control of premises.

Note Person in control—see s 13.

(2) The person has a duty to ensure work safety in relation to the premises by managing risk.

Note Managing risk—see s 14.

(3) Without limiting subsection (2), the person’s duty includes—

(a) maintaining the premises in a way that is consistent with work safety; and

(b) providing safe entry to, and exit from, the premises.

(1) This section applies to a person in control of plant or a system or the operation of the plant or system.

Note Person in control—see s 13.

(2) The person has a duty to ensure work safety in relation to the plant or system by managing risk.

Note Managing risk—see s 14.

(3) Without limiting subsection (2), the person’s duty includes maintaining the plant or system in a way that is consistent with work safety.

(1) This section applies to a person in control of—

(a) the design of plant or a structure that is used, is to be used or could reasonably be expected to be used, at work or at a workplace; or

(b) the design of a structure that is, is to be or could reasonably be expected to be, a workplace.

Note Person in control—see s 13.

(2) The person has a duty to ensure work safety in relation to the design of the plant or structure by managing risk.

Note Managing risk—see s 14.

(1) This section applies to a person in control of—

(a) the manufacture of plant or a structure that is used, is to be used or could reasonably be expected to be used, at work or at a workplace; or

(b) the manufacture of a structure that is, is to be or could reasonably be expected to be, a workplace.

Note 1 Person in control—see s 13.

Note 2 Additional duties in relation to dangerous substances apply under the Dangerous Substances Act 2004.

(2) The person has a duty to ensure work safety in relation to the manufacture of the plant or structure by managing risk.

Note Managing risk—see s 14.

(3) Without limiting subsection (2), the person’s duty in relation to the manufacture of the plant or structure includes—

(a) manufacturing the thing to be safe and without risk to health when used in the way it is intended to be used; and

(b) carrying out research, testing and examination about the thing to identify and eliminate, or minimise, any risk to work safety by the use of the thing; and

(c) giving the following information to each person to whom the manufacturer provides the thing:

(i) the intended use of the thing;

(ii) the results of research, testing and examination mentioned in paragraph (b);

(iii) the conditions necessary for the thing to be used safely; and

(d) on request, giving the information mentioned in paragraph (c) to a person who uses, or is to use, the plant or structure.

(1) This section applies to a person in control of—

(a) the import or supply of plant, or a structure, that is used, is to be used or could reasonably be expected to be used, at work or at a workplace; or

(b) the import or supply of a structure that is, is to be or could reasonably be expected to be, a workplace.

Note Person in control—see s 13.

(2) The person has a duty to ensure work safety in relation to the plant or structure by managing risk.

Note Managing risk—see s 14.

(3) Without limiting subsection (2), the person’s duty includes—

(a) supplying the thing safely and without risk to health when used in the way it is intended to be used; and

(b) if the person imports the thing—before supplying the thing to someone else, ensuring that—

(i) the person in control of the design of the thing has complied with section 24; and

(ii) the person in control of the manufacture of the thing has complied with section 25; and

(c) giving the following to a person intending to use the thing, or whose work safety may be affected by the use of the thing:

(i) information about the intended use of the thing;

(ii) the conditions necessary for the thing to be used safely;

(iii) information about how to maintain the thing to ensure the thing remains safe to use.

(4) For this section, a person is not in control of the supply of a thing if the person—

(a) carries on the business of financing the buying or use of things by other people; and

(b) has, in the business, acquired an interest in the thing only to finance its acquisition by someone else from another person or its provision to someone else by another person; and

(c) has not taken possession of the thing, or has taken possession of the thing only to pass possession to the other person; and

(d) supplies the thing to the other person.

(5) In this section, a person also supplies a structure if the person owns the structure or is in control of the structure.

(1) A worker has a duty not to expose the worker, and other people who may be affected by the worker’s work, to work safety risks because of the worker’s work.

(2) Without limiting subsection (1), the worker’s duty includes—

(a) cooperating with a person conducting the business or undertaking for which the worker works, or a person in control of the worker’s workplace, to allow the person to comply with the person’s duties under this Act; and

(b) complying with instructions given by a person conducting the business or undertaking for which the worker works, or a person in control of the worker’s workplace, in relation to work safety; and

(c) properly using equipment supplied for work safety at the workplace; and

(d) reporting any risk, illness and injury, connected with work, that the worker is aware of.

A person at a workplace has a duty not to expose others at the workplace to work safety risks because of the person’s conduct.

In this division:

safety duty means a duty under division 3.1 (Duties to manage risk).

(1) A person commits an offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with the duty.

Maximum penalty: 100 penalty units.

(2) Absolute liability applies to subsection (1) (a).

(3) Strict liability applies to subsection (1) (b).

Note For public sector workplace compliance measures, see div 6.8.

(1) A person commits an offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with the duty; and

(c) the failure exposes someone to a substantial risk of serious harm; and

(d) the person is negligent about whether the failure exposes anyone to a substantial risk of serious harm.

Maximum penalty: 1 000 penalty units, imprisonment for 2 years or both.

(2) Absolute liability applies to subsection (1) (a).

(3) Strict liability applies to subsection (1) (b).

Note For public sector workplace compliance measures, see div 6.8.

(1) A person commits an offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with the duty; and

(c) the failure exposes someone to a substantial risk of serious harm; and

(d) the person is reckless about whether the failure exposes anyone to a substantial risk of serious harm.

Maximum penalty: 1 500 penalty units, imprisonment for 5 years or both.

(2) Absolute liability applies to subsection (1) (a).

(3) Strict liability applies to subsection (1) (b).

Note For public sector workplace compliance measures, see div 6.8.

(1) A person commits an offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with the duty; and

(c) the failure causes serious harm to someone; and

(d) the person is negligent about whether the failure causes serious harm to anyone.

Maximum penalty: 1 500 penalty units, imprisonment for 3 years or both.

(2) Absolute liability applies to subsection (1) (a).

(3) Strict liability applies to subsection (1) (b).

Note For public sector workplace compliance measures, see div 6.8.

(1) A person commits an offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with the duty; and

(c) the failure causes serious harm to someone; and

(d) the person is reckless about whether the failure causes serious harm to anyone.

Maximum penalty: 2 000 penalty units, imprisonment for 7 years or both.

(2) Absolute liability applies to subsection (1) (a).

(3) Strict liability applies to subsection (1) (b).

Note For public sector workplace compliance measures, see div 6.8.

(1) This section applies if, in a prosecution for an offence for a failure to comply with a safety duty, the trier of fact—

(a) is not satisfied beyond reasonable doubt that the defendant is guilty of the offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence.

(2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to the finding of guilt.

(3) In this section:

alternative offence, for an offence against a provision mentioned in an item in table 33, column 2, means an offence against a provision mentioned in the item, column 3.

For this division, each of the following is a serious event if it is attributable to a business or undertaking:

(a) the death of a worker or another person;

(b) an injury to a worker which results in incapacity for work for a period prescribed by regulation;

(c) a serious injury to a person other than a worker;

(d) a dangerous occurrence.

1 injury resulting in amputation

2 extensive burns

3 injury resulting in injured person being placed on life support

4 loss of consciousness because of exposure to dangerous substance or electric shock

5 injury requiring immediate medical treatment

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

dangerous occurrence means 1 or more of the following:

(a) an occurrence involving imminent risk of the death of, or serious injury to, anyone;

(b) an occurrence that endangers or is likely to endanger the work safety of people at a workplace, including—

(i) damage to a boiler, pressure vessel, plant, equipment or other thing;

(ii) damage to, or failure of, a load-bearing member or control device of a crane, hoist, conveyor, lift, escalator, moving walkway, plant, scaffolding, gear, amusement device or public stand;

(iii) an uncontrolled fire, uncontrolled explosion or escape of gas, a dangerous substance or steam;

(c) anything else prescribed by regulation.

1 major damage to plant, equipment, building or structure

2 imminent risk of uncontrolled explosion or uncontrolled fire

3 imminent risk of escape of gas, a dangerous substance or steam

4 entrapment of person in confined space

5 collapse of excavation

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).and dangerous occurrence reporting and records

(1) A person in control of a business or undertaking must give notice to the chief executive of a serious event at or near a workplace of the business or undertaking.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

(2) A regulation may prescribe the requirements for a notice under subsection (1), including—

(a) the time for giving the notice; and

(b) the method for giving the notice.

Note If a form is approved under s 229 for this provision, the form must be used.

(1) A person in control of a business or undertaking must keep a record of each serious event for which notice is required to be given under section 38 for 5 years after the day the notice is given.

Maximum penalty: 10 penalty units.

(2) An offence under subsection (1) is a strict liability offence.

(1) This section applies if a serious event for which notice is required to be given under section 38 is reported under the Dangerous Substances Act 2004.

(2) The reporting under the Dangerous Substances Act 2004 is taken to be adequate notice of the event for this Act.

(1) This section applies if a person in control of a business or undertaking is required to give the chief executive notice of a serious event under section 38.

(2) The person must ensure that the site where the serious event happened is not entered or disturbed—

(a) for 72 hours; or

(b) until an inspector directs otherwise.

Maximum penalty: 10 penalty units.

(3) An offence against this section is a strict liability offence.

(4) This section does not apply to the disturbance of a site to—

(a) protect the work safety of a person; or

(b) help an injured person; or

(c) take essential action to make the site safe or prevent a further dangerous event happening.

(1) A worker has the right to refuse to do work if—

(a) an emergency procedure has been activated because of a significant risk to work safety; or

(b) the worker has a reasonable belief that the work involves a significant risk to work safety.

(2) If a worker refuses to do work under subsection (1), a person in control of a workplace may require the worker to do alternative work.

(1) A person commits an offence if—

(a) the person is in control of a workplace; and

(b) a worker has—

(i) complained or proposes to complain about a work safety matter at the workplace; or

(ii) assisted or proposes to assist the conduct of an investigation or inspection of the workplace by an inspector; or

(iii) stopped doing work, or proposes to stop doing work, under section 42; and

(c) because of a matter mentioned in paragraph (b), the person—

(i) prejudicially alters the worker’s conditions of employment or engagement (whether by the deduction or withholding of remuneration or by any other means); or

(ii) if the worker is an employee—dismisses the worker or injures the worker’s employment; or

(iii) threatens to take action mentioned in subparagraphs (i) or (ii) in relation to the worker.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) In a proceeding for an offence against this section, if the elements of the offence in subsections (1) (a) and (b), and an element of the offence in subsection (1) (c) are proved, it is presumed, unless the contrary is established, that the worker’s conduct mentioned in subsection (1) (b) is the reason for the person’s conduct mentioned in subsection (1) (c).

(1) A person commits an offence if the person interferes with safety equipment provided at or near a workplace.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) In this section:

interfere, with equipment, means inhibit or prevent the effective operation of the equipment.

safety equipment, in relation to a person, means equipment that the person knows, or ought reasonably to know, is provided to help protect the work safety of people at work.

A person commits an offence if the person imposes a levy or charge on an employee for anything done, or provided, to ensure work safety.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

In this Act:

worker consultation unit, for an employer, means—

(a) the group of all of the employer’s workers; or

(b) if a worker consultation unit is established under section 48—that unit.

(1) An employer has a duty to consult, if reasonably practicable, with the employer’s workers to allow the workers to contribute to matters directly affecting their work safety.

(2) Without limiting subsection (1), the employer’s duty to consult includes the following matters:

(a) identifying or assessing risks to work safety at the employer’s workplace or in relation to conducting the employer’s business or undertaking;

(b) the measures to be taken to manage risks to work safety at the employer’s workplace or in relation to conducting the employer’s business or undertaking;

(c) the adequacy of facilities;

(d) proposing changes that may directly affect work safety;

(e) any other issues in relation to work safety;

(f) anything else prescribed by regulation.

(3) For subsection (1), consultation with workers in a worker consultation unit must be in accordance with any decision under section 54 (Duty to consult—deciding how workers to be consulted).

(4) An employer commits an offence if—

(a) the employer has a duty to consult under subsection (1); and

(b) the employer fails to comply with the duty.

Maximum penalty: 100 penalty units.

(5) An offence against this section is a strict liability offence.

(1) This section applies if—

(a) it is not reasonably practicable for consultation to occur with the group of all the employer’s workers; or

(b) a worker of the employer asks the employer to establish 2 or more worker consultation units in the interests of work safety.

(2) For section 47 (Duty to consult), the employer must establish 2 or more worker consultation units in relation to the employer’s workers.

(3) A worker consultation unit established under this section may consist of—

(a) workers of an employer at 1 or more workplaces; or

(b) workers of 1 or more employers at 1 or more workplaces.

(4) An employer commits an offence if—

(a) the employer has a duty to establish a worker consultation unit under subsection (2); and

(b) the employer fails to establish the unit in accordance with section 49.

Maximum penalty: 50 penalty units.

(5) An offence against this section is a strict liability offence.

(1) For section 48, a worker consultation unit must be established in a way that best and most conveniently allows the work safety interests of the workers in the unit to be represented and safeguarded.

(2) The employer must consult the employer’s workers in establishing the worker consultation unit.

(3) The employer and the employer’s workers may, either separately or together, ask someone else to assist in the establishment of the worker consultation unit.

(4) In deciding the way that the worker consultation unit is established, the employer must consider the following in relation to the employer’s workers:

(a) the number and grouping of workers;

(b) workers’ working hours, including the representation of workers on shift work;

(c) the pattern of work of workers, including the representation of part-time, casual, seasonal or short-term workers;

(d) the geographic location of workplaces, including any dispersed locations, home-based work or transport work;

(e) the nature of different kinds of work carried out by workers, work arrangements and the levels of responsibility;

(f) workers’ characteristics, including gender, ethnicity, age and special needs;

(g) the hazards or risks to work safety at the workplace;

(h) the interaction of workers with the workers of other employers.

A regulation may prescribe—

(a) the eligibility requirements for a person to be elected as—

(i) a member of the health and safety committee for a worker consultation unit; and

(ii) a health and safety representative for a worker consultation unit; and

(b) anything else in relation to an election.

(1) This section applies if—

(a) an employer wants to change a worker consultation unit in the interests of work safety; or

(b) a worker of the employer gives the employer notice that the worker wants a change to a worker consultation unit in the interests of work safety.

(2) The employer must consult the workers about changing the worker consultation unit.

(3) The employer and the employer’s workers may, either separately or together, ask someone else to assist in the negotiations to change the worker consultation unit.

(4) The employer must make a change to the worker consultation unit if the change is necessary in the interests of work safety.

(1) An employer must review a worker consultation unit to consider the effectiveness of the unit.

(2) The review must be undertaken in consultation with the employer’s workers—

(a) every 2 years; or

(b) if a review is reasonably necessary because of workplace changes; or

(c) if a worker in the unit, a health and safety representative or a health and safety committee asks for a review.

(3) The employer must make a change to the worker consultation unit if a review shows that the change is necessary in the interests of work safety.

(1) An employer must keep records of the following in relation to each worker consultation unit:

(a) if the unit is established by the employer under section 48—the unit’s establishment;

(b) the unit’s activities;

(c) any change to the unit;

(d) each review of the unit.

Maximum penalty: 30 penalty units.

(2) The employer must make the records available on request to—

(a) each worker in the worker consultation unit; and

(b) any representative of a worker in the unit; and

(c) an inspector.

Maximum penalty: 30 penalty units.

(3) An offence against this section is a strict liability offence.

(1) The employer and each worker consultation unit must decide how the employer must consult the employer’s workers in the unit under this part.

(2) The employer and worker consultation unit may decide that the employer will consult the workers in the unit using—

(a) a health and safety representative elected by the workers in the unit; or

(b) a health and safety committee elected by the workers in the unit; or

(c) another stated method of consultation.

(3) However, if more than half the workers in the worker consultation unit ask that a health and safety representative, or a health and safety committee, be elected, the employer must arrange for the representative or committee to be elected by the workers in the unit.

(1) The chief executive may direct an employer to arrange for a health and safety committee to be elected by the workers in a worker consultation unit if satisfied on reasonable grounds that—

(a) the work done by the workers is hazardous; and

(b) the establishment of the committee will improve work safety.

(2) If the chief executive gives a direction under subsection (1), the employer must arrange for a health and safety committee to be elected.

(3) An employer commits an offence if—

(a) the chief executive gives a direction to an employer under subsection (1); and

(b) the employer fails to comply with the direction.

Maximum penalty: 100 penalty units.

(4) An offence against this section is a strict liability offence.

(1) An employer must consult the employer’s workers about a matter by—

(a) sharing with the workers information about the matter; and

(b) giving the workers a reasonable opportunity to—

(i) contribute information about the matter; and

(ii) express their views about the matter; and

(c) considering the workers’ views.

(2) The employer consults the workers by—

(a) if the workers are represented by a health and safety representative—consulting the representative, whether with or without the direct involvement of the workers; or

(b) if the workers are represented by a health and safety committee—consulting the committee, whether with or without the direct involvement of the workers; or

(c) if the employer and the workers in a worker consultation unit have agreed to a consultation procedure—consulting in accordance with the procedure; or

(d) if the workers are not represented by a health and safety representative or health and safety committee—consulting the workers directly.

(3) An employer commits an offence if—

(a) a worker consultation unit of the employer’s workers elect a health and safety representative or health and safety committee; and

(b) the employer fails to consult the health and safety representative or health and safety committee about a matter directly affecting the work safety of the employer’s workers.

Maximum penalty: 50 penalty units.

(1) This section applies if a dispute arises between an employer and a worker of the employer in relation to—

(a) the establishment of a worker consultation unit under section 48; or

(b) a change to a worker consultation unit under section 51 (Worker consultation unit—changes) or section 52 (Worker consultation unit—review); or

(c) the election of a health and safety representative; or

(d) the operation of a health and safety committee.

(2) The employer, a worker in the worker consultation unit or the worker consultation unit may refer the dispute to the chief executive for arbitration.

(3) The chief executive must arbitrate a referred dispute.

(4) The system of arbitration may be prescribed by regulation.

(1) The functions of a health and safety representative for a worker consultation unit are—

(a) to represent the worker consultation unit in relation to work safety; and

(b) to tell the workers’ employer about potential risks and dangerous occurrences at any workplace where represented workers work; and

(c) to tell the employer about work safety matters directly affecting the represented workers.

(2) A regulation may prescribe other functions for the health and safety representative.

(3) In exercising a function, the health and safety representative may, in accordance with a regulation, do 1 or more of the following:

(a) inspect all or part of a workplace where a represented worker works;

(b) issue a provisional improvement notice for a place where a represented worker works;

(c) exercise emergency powers.

(4) However, a health and safety representative must take all reasonable steps to consult the employer to try to resolve a work safety matter before the representative—

(a) issues a provisional improvement notice; or

(b) exercises an emergency power.

A health and safety representative does not incur civil or criminal liability for an act or omission done honestly and without recklessness in the exercise of a function for this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and the corrections rules (see Legislation Act, s 104).

(1) The functions of a health and safety committee are—

(a) to facilitate cooperation between an employer and the employer’s workers in relation to work safety; and

(b) to assist the employer to consult workers on proposing and developing changes to work or other policies, practices or procedures that may directly affect work safety; and

(c) to assist the employer to resolve work safety matters; and

(d) to establish, review and publish procedures in relation to work safety.

(2) A regulation may prescribe other functions for a health and safety committee.

In this division:

authorised representative means a person authorised under section 62 (1).

office, in an organisation, means an office of the organisation, or a branch of the organisation, under the Workplace Relations Act 1996 (Cwlth), schedule 1, section 9.

(1) A registered organisation may, in writing, authorise a person for this division.

(2) However, the person may be authorised only if—

(a) the person—

(i) is an employee of the registered organisation; or

(ii) holds an office in the organisation; and

(b) the person has completed the training prescribed by regulation; and

(c) the person satisfies any condition of office prescribed by regulation.

(3) An authorisation under this section ends if—

(a) the authorised person stops being an employee of, and does not hold an office in, the registered organisation that authorised the person; or

(b) the authorised person stops holding an office in, and is not an employee of, the registered organisation that authorised the person.

(1) This section applies if an authorised representative of a registered organisation suspects on reasonable grounds that—

(a) a contravention of this Act may have happened, may be happening or is likely to happen at premises; and

(b) the premises are a workplace where members of the organisation (or people who are eligible to be members of the organisation) work.

(2) The authorised representative may enter the premises to investigate the contravention.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(3) However, the authorised representative may enter the premises only at a time when work is carried on, or usually carried on, at the premises by the members or people.

(4) This section does not authorise entry into a part of premises that is being used only for residential purposes.

(1) This section applies to an authorised representative who is authorised to enter premises under this division.

(2) The authorised representative may enter the premises without notice.

(3) The authorised representative must tell the occupier of the premises that the representative is on the premises as soon as reasonably practicable after entering the premises.

(4) However, the authorised representative need not tell the occupier of the premises that the representative is on the premises if—

(a) to do so would defeat the purpose for which the premises were entered; or

(b) the occupier had been told in writing when the representative would enter the premises.

An authorised representative must not remain at premises entered under this part if the representative does not produce his or her authorisation for inspection when asked by the occupier.

Note An authorisation must be in writing (see s 62).

(1) This section applies if an authorised representative enters premises under section 63 to investigate a suspected contravention of this Act.

(2) The authorised representative may investigate the contravention by doing 1 or more of the following:

(a) inspecting or viewing work, materials, plant or systems at the premises;

(b) interviewing members of the registered organisation (or people who are eligible to be members of the organisation) with their consent;

(c) taking measurements and making sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings) at the premises;

(d) requiring the production for inspection of documents relating to work safety at the premises;

(e) examining and copying, or taking extracts from, any document produced under paragraph (d);

Note It is an offence for a person (including an authorised representative) to disclose protected information obtained while exercising a function under this Act (see s 211).

(f) requiring the occupier or a worker to give the representative any assistance reasonably needed to exercise a function under this division at the premises.

(3) If an authorised representative requires a person to produce documents for inspection under subsection (2) (d) the representative must—

(a) show the person the representative’s authorisation; and,

(b) give the person 14 days written notice to produce the documents.

(4) If an authorised representative requires the assistance of a person under subsection (2) (f) the representative must show the person the representative’s authorisation.

(1) In the exercise, or purported exercise, of a function under this division, an authorised representative must take all reasonable steps to ensure that the representative causes as little inconvenience, detriment and damage as is practicable.

(2) If an authorised representative damages anything in the exercise or purported exercise of a function under this division, the representative must give written notice of particulars of the damage to the person whom the representative believes on reasonable grounds is the owner of the thing.

(3) If the damage happens at premises entered under this division in the absence of the occupier, the authorised representative may give the notice by leaving it secured in a conspicuous place at the premises.

(1) A person may claim compensation from a registered organisation if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this division by an authorised representative of the organisation.

(2) Compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction.

(3) A court may order the payment of reasonable compensation for the loss or expense only if satisfied that it is just to make the order in the circumstances of the particular case.

(4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

(1) This section applies if an authorised representative enters premises under section 63.

(2) Within 2 days after the day the authorised representative enters the premises, the representative must give the occupier and chief executive a written notice telling the occupier whether the representative believes that this Act has been, or may have been, contravened at the premises.

(1) A registered organisation commits an offence if—

(a) the organisation authorises a person under section 62; and

(b) either—

(i) the person is not an employee of, and does not hold an office in, the organisation; or

(ii) the person has not completed the prescribed training.

Maximum penalty: 10 penalty units.

(2) A registered organisation commits an offence if—

(a) the organisation authorises a person under section 62; and

(b) the organisation does not give the chief executive written notice of the authorisation as soon as practicable (but not later than 7 days) after the day the person is authorised.

Maximum penalty: 5 penalty units.

(3) A registered organisation commits an offence if—

(a) the organisation authorises a person under section 62; and

(b) the authorisation ends; and

(c) the organisation does not give the chief executive written notice of the authorisation’s end as soon as practicable (but not later than 7 days) after the day the authorisation ends.

Maximum penalty: 5 penalty units.

(4) An offence against this section as a strict liability offence.

A person commits an offence if the person pretends that the person is an authorised representative.

Maximum penalty: 100 penalty units.

(1) A person commits an offence if the person—

(a) obstructs, hinders, intimidates or resists a person who is an authorised representative in the exercise of the representative’s functions; and

(b) knows that the other person is an authorised representative.

Maximum penalty: 50 penalty units.

(2) Strict liability applies to the circumstance that the other person is exercising functions as an authorised representative.

In this part:

connected—a thing is connected with an offence if—

(a) the offence has been committed in relation to it; or

(b) it will provide evidence of the commission of the offence; or

(c) it was used, is being used, or is intended to be used, to commit the offence.

data includes—

(a) information in any form; and

(b) a program (or part of a program).

data storage device means a thing containing, or designed to contain, data for use by a computer.

occupier, of premises, includes—

(a) a person believed on reasonable grounds to be an occupier of the premises; and

(b) a person apparently in charge of the premises.

offence includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed.

person assisting, in relation to a search warrant, means a person authorised by an inspector to assist in executing the warrant.

search warrant means a warrant issued under division 5.3 (Search warrants) that is in force.

(1) For this Act, an inspector may—

(a) at any reasonable time, enter premises that the inspector believes on reasonable grounds is a workplace; or

(b) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of an amount); or

(c) at any time, enter premises with the occupier’s consent; or

(d) enter premises in accordance with a search warrant; or

(e) at any time, enter premises if the inspector believes on reasonable grounds that the circumstances are of such seriousness and urgency as to require immediate entry to the premises without the authority of a search warrant.

Note Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).

(2) However, subsection (1) (a) or (b) does not authorise entry into a part of premises that is being used only for residential purposes.

(3) An inspector may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.

(4) To remove any doubt, an inspector may enter premises under subsection (1) without payment of an entry fee or other charge.

(5) For subsection (1) (e), the inspector may enter the premises with any necessary assistance and force.

(6) In this section:

at any reasonable time means at any time—

(a) for subsection (1) (a)—during normal business hours or any other time when the premises are being used as a workplace; or

(b) for subsection (1) (b)—when the public is entitled to use the premises, or when the premises are open to or used by the public, whether or not on payment of an amount.

(1) For section 74, an inspector may stop and detain a vehicle that the inspector believes on reasonable grounds—

(a) is a workplace; or

(b) contains documents relating to a work safety duty.

(2) For subsection (1), the inspector—

(a) may direct the driver of the vehicle to move the vehicle to a place (or another place) to which the public has access; and

(b) may exercise the inspector’s powers in relation to the vehicle at the place; and

(c) must not detain the vehicle for longer than is reasonably necessary to exercise the inspector’s powers under this division.

An inspector must not remain at premises entered under this part if the inspector does not produce his or her identity card for inspection when asked by the occupier.

(1) When seeking the consent of an occupier of premises to enter premises under section 74 (1) (c) (Power to enter premises), an inspector must—

(a) produce the inspector’s identity card; and

(b) tell the occupier—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused.

(2) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)—

(a) that the occupier was told—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused; and

(b) that the occupier consented to the entry; and

(c) stating the time and date when consent was given.

(3) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier.

(4) A court must find that the occupier did not consent to entry to the premises by the inspector under this part if—

(a) the question whether the occupier consented to the entry arises in a proceeding in the court; and

(b) an acknowledgment of consent for the entry is not produced in evidence for the entry; and

(c) it is not proved that the occupier consented to the entry.

An inspector who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises:

(a) examine anything;

(b) examine and copy, or take extracts from, documents relating to a contravention, or possible contravention, of this Act;

(c) take measurements, conduct tests and make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings);

(d) open or operate (or require to be opened or operated) plant or a system;

(e) take for analysis samples of water, soil or anything else that is part of the environment to find out whether the environment poses a risk to the work safety of people;

(f) subject to division 5.5 (Taking and analysis of samples) take for analysis samples of anything else;

(g) carry out any other examination to find out whether this Act has been, or is being, complied with;

(h) take onto the premises any people, equipment or material the inspector reasonably needs to exercise a power under this Act;

(i) require the occupier, or anyone at the premises, to give information, answer questions, or produce documents or anything else (whether the information, document or other thing is at the premises or elsewhere), reasonably needed to exercise the inspector’s functions under this part;

(j) require the occupier, or anyone at the premises, to give the inspector reasonable help to exercise a function under this division.

An inspector is conducting an inspection at a construction site. The inspector forms the view that relevant documents are held at the head office of the company operating the construction site. A person at the premises may be required to produce the documents that are held at the head office.

Note 1 At premises includes in or on the premises (see dict).

Note 2 Examine includes inspect, weigh, count, test and measure (see dict).

Note 3 The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

Note 4 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

Note 5 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) An inspector may exercise 1 or more of the powers mentioned in section 78 at a public place if the inspector believes on reasonable grounds that the place is a workplace.

(2) This Act applies in relation to the exercise of a power under subsection (1) as if—

(a) the public place were premises entered by the inspector under this division; and

(b) all other necessary changes were made.

(3) Without limiting subsection (2), if a person is required to do something by an inspector under subsection (1), the person need not comply with the requirement if the inspector does not produce his or her identity card for inspection when asked by the person.

A person must take reasonable steps to comply with a requirement made of the person under section 78 (i) or (j).

Maximum penalty: 50 penalty units.

(1) This section applies if an inspector believes on reasonable grounds that—

(a) premises are a workplace; and

(b) there is an imminent risk of serious harm to a person at or near the premises; and

(c) it is necessary for the inspector to take action without delay to prevent or minimise the risk.

Note 1 At premises includes in or on the premises (see dict).

Note 2 Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).

(2) This section applies even if an inspector has given a person an improvement or prohibition notice in relation to the premises and the time for complying with the notice has not ended.

(3) The inspector may take the action the inspector believes on reasonable grounds is necessary to prevent or minimise the risk.

1 entering the premises with any necessary assistance and force

2 asking someone the inspector believes on reasonable grounds has appropriate knowledge and experience to help the inspector prevent or minimise the risk

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) The power to enter premises under this section is additional to the powers under section 74.

(5) In deciding the action to be taken, the inspector must, to the extent that is reasonably practicable, consult with the occupier of the premises and the chief executive.

(6) If an inspector asks someone to help under subsection (3), the person is taken to have the powers of an inspector to the extent reasonably necessary for the person to help prevent or minimise the risk.

As soon as practicable after taking action under section 81 an inspector must—

(a) prepare a report that outlines why the action was taken, the action that was taken and any damage to property because of the action; and

(b) give a copy of the report to the person in control of the premises and the chief executive.

(1) This section applies if an inspector takes action under section 81 to prevent or minimise a risk.

(2) Costs incurred by the Territory in relation to the action are a debt owing to the Territory by, and are recoverable together and separately from, the following people:

(a) each employer in relation to work performed at the premises to which the action relates;

(b) each owner and lessee of the premises to which the action relates;

(c) the person who caused the risk.

(3) However, costs are not recoverable from a person if the person establishes that—

(a) the risk was caused by the act or omission of someone other than the person or the person’s employee or agent; and

(b) reasonable precautions were taken, and appropriate diligence was exercised, by the person to avoid the act or omission.

(4) This section does not limit the powers the Territory has apart from this Act.

(1) This section applies if an inspector believes on reasonable grounds that a serious event has happened, is happening or is about to happen at premises.

(2) The inspector may enter the premises to investigate the serious event, ensure the premises are safe and prevent the concealment, loss or destruction of anything reasonably relevant to the investigation of the event.

(3) For subsection (2), the inspector may enter the premises with any necessary assistance and force.

(4) The inspector may do anything reasonably necessary for a purpose mentioned in subsection (2).

(5) If an inspector acts under this section in the absence of the occupier of the premises, the inspector must, when leaving the premises, leave a written notice, secured in a conspicuous place, setting out—

(a) the inspector’s name; and

(b) the time and date of the entry; and

(c) the purpose of the entry; and

(d) how to contact the inspector.

(6) The power to enter premises under this section is additional to the powers under section 74.

(1) An inspector who enters premises under this part with the consent of the occupier may seize anything at the premises if—

(a) the inspector is satisfied on reasonable grounds that the thing is connected with an offence against this Act; and

(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.

(2) An inspector who enters premises under a warrant under this part may seize anything at the premises that the inspector is authorised to seize under the warrant.

(3) An inspector who enters premises under this part (whether with the consent of the occupier, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that—

(a) the thing is connected with an offence against this Act; and

(b) the seizure is necessary to prevent the thing from being—

(i) concealed, lost or destroyed; or

(ii) used to commit, continue or repeat the offence.

(4) Also, an inspector who enters premises under this part (whether with the consent of the occupier, under a warrant or otherwise) may seize anything at the premises if satisfied on reasonable grounds that the thing poses a risk to work safety.

(5) The powers of an inspector under subsections (3) and (4) are additional to the powers of the inspector under subsections (1) and (2) and any other territory law.

(1) This section applies if an inspector has seized a thing at premises (the place of seizure) under section 85.

(2) The inspector may—

(a) remove the thing from the place of seizure to another place; or

(b) leave the thing at the place of seizure but restrict access to it.

The inspector may—

(a) place the seized thing in a room or other enclosed area, compartment or cabinet at the place of seizure; and

(b) fasten and seal the door or opening providing access to the room, area, compartment or cabinet; and

(c) mark the door or opening in a way that indicates that access to it has been restricted under this Act.

Note 1 The inspector may also destroy or otherwise dispose of the thing under s 87 if that section applies to the thing.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) A person commits an offence if—

(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (2); and

(b) the person does not have an inspector’s approval to interfere with the thing.

Maximum penalty: 100 penalty units.

(1) This section applies to anything inspected or seized under this part by an inspector if the inspector believes on reasonable grounds that the thing poses a risk to work safety.

(2) The inspector may—

(a) require the occupier of the premises where the thing is to destroy or otherwise dispose of the thing; or

(b) if the thing has been seized—destroy or otherwise dispose of the thing.

(3) A requirement under subsection (2) (a) may state 1 or more of the following:

(a) how the thing must be destroyed or otherwise disposed of;

(b) how the thing must be kept until it is destroyed or otherwise disposed of;

(c) the period within which the thing must be destroyed or otherwise disposed of.

(4) The occupier of the premises where the thing is commits an offence if the person contravenes a requirement under subsection (2) (a).

Maximum penalty: 100 penalty units.

(5) Costs incurred by the Territory in relation to the disposal of a thing under subsection (2) (b) are a debt owing to the Territory by, and are recoverable together and separately from, the following people:

(a) each person in control of a business or undertaking in relation to the thing seized or, if there is no such person, each person in relation to work performed at the premises from which the thing was seized;

(b) the person who owned the thing.

(1) An inspector may require a person to state the person’s name and home address if the inspector believes on reasonable grounds that the person is committing, is about to commit, or has just committed, an offence against this Act.

Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

(2) The inspector must tell the person the reason for the requirement and, as soon as practicable, record the reason.

(3) The person may ask the inspector to produce the inspector’s identity card for inspection by the person.

(4) A person must comply with a requirement made of the person under subsection (1) if the inspector—

(a) tells the person the reason for the requirement; and

(b) complies with any request made by the person under subsection (3).

Maximum penalty: 10 penalty units.

(5) An offence against this section is a strict liability offence.

(6) In this section:

home address, of a person, means the address of the place where the person usually lives.

(1) This section applies if—

(a) an inspector believes on reasonable grounds that the person is doing something, is about to do something, or has just done something; and

(b) the regulations require doing the thing to be authorised (however described) under this Act.

a person is operating a forklift and, under this Act, is required to hold a certificate to operate the forklift

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The inspector may require the person to produce for inspection anything that authorises the person to do the thing.

(3) The inspector must tell the person the reason for the requirement and, as soon as practicable, record the reason.

(4) The person may ask the inspector to produce the inspector’s identity card for inspection by the person.

(5) A person must comply with a requirement made of the person under subsection (2) if the inspector—

(a) tells the person the reason for the requirement; and

(b) complies with any request made by the person under subsection (4).

Maximum penalty: 10 penalty units.

(6) An offence against this section is a strict liability offence.

(7) For this section, the regulations may declare that a person authorised to do a thing under a corresponding law is authorised to do the thing under this Act.

(8) In this section:

corresponding law means a State law that corresponds to this Act.

(1) An inspector may apply to a magistrate for a warrant to enter premises.

(2) The application must be sworn and state the grounds on which the warrant is sought.

(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.

(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—

(a) there is a particular thing or activity connected with an offence against this Act; and

(b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days.

Note At premises includes in or on the premises (see dict).

(5) The warrant must state—

(a) that an inspector may, with any necessary assistance and force, enter the premises and exercise the inspector’s powers under this part; and

(b) the offence for which the warrant is issued; and

(c) the things that may be seized under the warrant; and

(d) the hours when the premises may be entered; and

(e) the date, within 14 days after the day the warrant is issued, that the warrant ends.

(1) An inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of—

(a) urgent circumstances; or

(b) other special circumstances.

(2) Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought.

(3) The inspector may apply for the warrant before the application is sworn.

(4) If the magistrate issues the warrant, the magistrate must immediately fax a copy to the inspector if it is practicable to do so.

(5) If it is not practicable to fax a copy to the inspector—

(a) the magistrate must tell the inspector—

(i) the terms of the warrant; and

(ii) the date and time the warrant was issued; and

(b) the inspector must complete a form of warrant (the warrant form) and write on it—

(i) the magistrate’s name; and

(ii) the date and time the magistrate issued the warrant; and

(iii) the warrant’s terms.

(6) The faxed copy of the warrant, or the warrant form properly completed by the inspector, authorises the entry and exercise of the inspector’s powers under the warrant.

(7) The inspector must, at the first reasonable opportunity, send the magistrate—

(a) the sworn application; and

(b) if the inspector completed a warrant form—the completed warrant form.

(8) On receiving the documents, the magistrate must attach them to the warrant.

(9) A court must find that a power exercised by an inspector was not authorised by a warrant under this section if—

(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and

(b) the warrant is not produced in evidence; and

(c) it is not proved that the exercise of power was authorised by a warrant under this section.

(1) An inspector must, before anyone enters premises under a search warrant—

(a) announce that the inspector is authorised to enter the premises; and

(b) give anyone at the premises an opportunity to allow entry to the premises; and

(c) if the occupier of the premises is present at the premises—identify himself or herself to the occupier.

(2) The inspector is not required to comply with subsection (1) if the inspector believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of anyone (including the inspector or anyone assisting); or

(b) that the effective execution of the warrant is not frustrated.

If the occupier of the premises is present at the premises while a search warrant is being executed, the inspector or a person assisting must make available to the occupier—

(a) a copy of the warrant; and

(b) a document setting out the rights and obligations of the occupier.

(1) If the occupier of premises is present at the premises while a search warrant is being executed, the occupier is entitled to observe the search being conducted.

(2) However, the occupier is not entitled to observe the search if—

(a) to do so would impede the search; or

(b) the occupier is under arrest, and allowing the occupier to observe the search being conducted would interfere with the objectives of the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—

(a) both of the following apply:

(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;

(ii) it is significantly more practicable to move the thing having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or

(b) the occupier of the premises agrees in writing.

(2) The thing may be moved to another place for examination or processing for not longer than 3 business days.

(3) An inspector may apply to a magistrate for an extension of time if the inspector believes on reasonable grounds that the thing cannot be examined or processed within 3 business days.

(4) The inspector must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.

(5) If a thing is moved to another place under this section, the inspector must, if practicable—

(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and

(b) allow the occupier or the occupier’s representative to be present during the examination or processing.

(6) The provisions of this division relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

(1) An inspector or person assisting may operate electronic equipment at premises entered under a search warrant to access data (including data not held at the premises) if the inspector or person believes on reasonable grounds that—

(a) the data might be something to which the warrant relates; and

(b) the equipment can be operated without damaging the data.

(2) If the inspector or person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might be something to which the warrant relates, the inspector or person may—

(a) copy the data to a data storage device brought to the premises; or

(b) if the occupier of the premises agrees in writing—copy the data to a data storage device at the premises.

(3) The inspector or person assisting may take the device from the premises.

(4) The inspector or person assisting may do the following things if the inspector or person finds that anything to which the warrant relates (the material) is accessible using the equipment:

(a) seize the equipment and any data storage device;

(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents produced.

(5) An inspector may seize equipment under subsection (4) (a) only if—

(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in subsection (4) (b); or

(b) possession of the equipment by the occupier could be an offence.

(1) An inspector may apply to a magistrate for an order requiring a stated person to provide any information or assistance that is reasonably necessary to allow the inspector or a person assisting to do 1 or more of the following:

(a) access data held in or accessible from a computer that is at the premises;

(b) copy the data to a data storage device;

(c) convert the data into documentary form.

(2) The magistrate may make an order if satisfied that—

(a) there are reasonable grounds for suspecting that something to which the warrant relates is accessible from the computer; and

(b) the stated person is—

(i) reasonably suspected of possessing, or having under the person’s control, something to which the warrant relates; or

(ii) the owner or lessee of the computer; or

(iii) an employee or agent of the owner or lessee of the computer; and

(c) the stated person has knowledge of—

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect data held in or accessible from the computer.

(3) A person commits an offence if the person contravenes an order under this section.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(4) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the making of an order under this section.

(1) This section applies if the inspector or a person assisting believes on reasonable grounds that—

(a) something to which the warrant relates (the material) may be accessible by operating electronic equipment at the premises; and

(b) expert assistance is needed to operate the equipment; and

(c) the material may be destroyed, altered or otherwise interfered with if the inspector or person does not take action.

(2) The inspector or person may do whatever is necessary to secure the equipment.

locking the equipment up or placing a guard

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) The inspector or a person assisting must give written notice to the occupier of the premises of—

(a) the inspector’s or person’s intention to secure the equipment; and

(b) the fact that the equipment may be secured for up to 24 hours.

(4) The equipment may be secured until the earlier of the following events happens:

(a) the end of the 24-hour period;

(b) the equipment is operated by the expert.

(5) If the inspector or a person assisting believes on reasonable grounds that the expert assistance will not be available within the 24-hour period, the inspector or person may apply to a magistrate to extend the period.

(6) The inspector or a person assisting must tell the occupier of the premises of the intention to apply for an extension, and the occupier is entitled to be heard on the application.

(7) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

(1) This section applies if—

(a) the occupier of premises is present at the premises while a search warrant is executed; and

(b) the inspector seizes—

(i) a document, film, computer file or something else that can be readily copied; or

(ii) a data storage device containing information that can be readily copied.

(2) The occupier may ask the inspector to give the occupier a copy of the thing or information.

(3) The inspector must give the occupier the copy as soon as practicable after the seizure.

(4) However, the inspector is not required to give the copy if—

(a) the thing was seized under section 96 (Use of electronic equipment at premises); or

(b) possession of the thing or information by the occupier would be an offence.

(1) As soon as practicable after a thing is seized by an inspector under this part, the inspector must give a receipt for it to the person from whom it was seized.

(2) If, for any reason, it is not practicable to comply with subsection (1), the inspector must leave the receipt, secured conspicuously, at the place of seizure under section 86 (Action in relation to seized thing).

(3) A receipt under this section must include the following:

(a) a description of the thing seized;

(b) an explanation of why the thing was seized;

(c) an explanation of the person’s right to apply to a court under section 103 for an order disallowing the seizure;

(d) if the thing is removed from the premises where it is seized—where the thing is to be taken;

(e) the inspector’s name, and how to contact the inspector.

(1) This section applies to a document or anything else seized under this part.

(2) If asked by a person who would be entitled to inspect the thing if it were not seized under this part, an inspector must allow the person, at any reasonable time—

(a) for a document—to inspect, take extracts from or make copies of the document; and

(b) for anything else—to inspect the thing.

(3) This section does not apply to—

(a) a thing seized under section 85 (4) (which is about the seizure of a thing that poses a risk to work safety); or

(b) a thing seized under section 96 (Use of electronic equipment at premises); or

(c) a thing or information if possession of it by the person otherwise entitled to inspect it would be an offence.

(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, unless—

(a) a prosecution for an offence against a territory law in connection with the thing is begun within 1 year after the day the seizure is made and the thing is required to be produced in evidence in the prosecution; or

(b) an application for the forfeiture of the seized thing is made to a court under the Confiscation of Criminal Assets Act 2003 or another territory law within 1 year after the day the seizure is made; or

(c) all proceedings in relation to the offence with which the seizure was connected have ended and the court has not made an order about the thing.

(2) However, this section does not apply to a thing—

(a) seized under section 85 (4) (which is about the seizure of a thing that poses a risk to work safety); or

(b) if the chief executive believes on reasonable grounds that the only practical use of the thing in relation to the premises where it was seized would be an offence against this Act; or

(c) if possession of it by its owner would be an offence.

(1) A person claiming to be entitled to a thing seized under this part may apply to the Magistrates Court within 1 year after the day the seizure is made for an order disallowing the seizure.

(2) The application may be heard only if the applicant has served a copy of the application on the chief executive.

(3) The chief executive is entitled to appear as respondent at the hearing of the application.

(1) This section applies if a person claiming to be entitled to a thing seized under this part applies to the Magistrates Court under section 103 for an order disallowing the seizure.

(2) The Magistrates Court must make an order disallowing the seizure if satisfied that—

(a) the applicant would, apart from the seizure, be entitled to the return of the seized thing; and

(b) possession of the thing by the person would not be an offence.

(3) The Magistrates Court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the making of the order.

(4) If the Magistrates Court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders:

(a) an order directing the chief executive to return the thing to the applicant or to someone else that appears to be entitled to it;

(b) if the thing cannot be returned or has depreciated in value because of the seizure—an order directing the Territory to pay reasonable compensation;

(c) an order about the payment of costs in relation to the application.

(1) This section applies to the hearing of an application under section 103 (Application for order disallowing seizure).

(2) If it appears to the Magistrates Court that the seized thing is required to be produced in evidence in a pending proceeding in relation to an offence against a territory law, the court may, on the application of the chief executive or its own initiative, adjourn the hearing until the end of the proceeding.

(1) This section applies if—

(a) a thing seized under this part has not been destroyed or otherwise disposed of under section 87 or returned under section 102; and

(b) an application for disallowance of the seizure under section 103—

(i) has not been made within 1 year after the day the seizure is made; or

(ii) has been made within 1 year after the day the seizure is made, but the application has been refused or withdrawn before a decision in relation to the application has been made.

(2) If this section applies to the seized thing—

(a) the thing is forfeited to the Territory; and

(b) the thing may be sold, destroyed or otherwise disposed of as the chief executive directs.

(1) This section applies to a thing forfeited under section 106 that has not been disposed of in a way that would prevent its return.

(2) If the chief executive becomes satisfied that there has been no offence against this Act with which the thing is connected, the chief executive must, as soon as practicable, return the thing to the person from whom it was seized or someone else who appears to the chief executive to be entitled to it.

(3) On its return, any proprietary and other interest in the thing that existed immediately before its forfeiture is restored.

(1) This section applies if—

(a) a person is convicted, or found guilty, of an offence against this Act in relation to something forfeited to the Territory under this part; and

(b) the thing is connected with an offence against this Act; and

(c) the person was the owner of the thing immediately before its forfeiture.

Note Found guilty—see the Legislation Act, dictionary, pt 1.

(2) If this section applies, costs incurred by or on behalf of the Territory in relation to the lawful disposal of the thing (including storage costs) are a debt owing to the Territory by the person.

This division does not stop an inspector from buying a sample of a substance for analysis for the routine monitoring of compliance with this Act without complying with the requirements of this part.

(1) This section applies if an inspector proposes to take, or takes, a sample of a substance for analysis from premises that are a workplace.

(2) Before or as soon as practicable after taking the sample, the inspector must tell the occupier of the premises of the inspector’s intention to have the sample analysed.

(3) If the occupier is not present or readily available, the inspector must instead t