An Act relating to the Federal Safety Commissioner, and for related purposes
Chapter 1—Preliminary
1 Short title
This Act may be cited as the Federal Safety Commissioner Act 2022.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 1 December 2016 |
2. Sections 3 to 120 | The later of: (a) 1 January 2014; and (b) the day after this Act receives the Royal Assent. | 2 December 2016 (paragraph (b) applies) |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The object of this Act is to promote work health and safety in relation to building work undertaken by a constitutional corporation, the Commonwealth or a corporate Commonwealth entity.
4 Simplified outline of this Act
The Federal Safety Commissioner, and Federal Safety Officers, are responsible for promoting work health and safety in relation to building work. They also have a role in relation to the Work Health and Safety Accreditation Scheme, which is a scheme prescribed by the rules for accrediting persons who carry out building work funded by the Commonwealth or a corporate Commonwealth entity.
Federal Safety Officers may obtain information. Federal Safety Officers can also enter premises for certain purposes. There are protections for, and limitations on the use of, information that is provided under this Act.
5 Definitions
In this Act:
accredited person means a person who is accredited under the WHS Accreditation Scheme.
authorised applicant for an order relating to a contravention of a civil remedy provision means:
(b) a person affected by the contravention; or
(c) a person prescribed by the rules for the purposes of this paragraph.
Rules prescribing persons for the purposes of paragraph (c) may provide that a person is prescribed only in relation to circumstances specified in the rules.
builder has the meaning given by subsection 43(8).
building contractor means a person who has entered into, or who has offered to enter into, a contract for services under which the person:
(a) carries out building work; or
(b) arranges for building work to be carried out.
building employee means:
(a) a person whose employment consists of, or includes, building work; or
(b) a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work.
building employer means an employer who employs, or offers to employ, building employees.
building work has the meaning given by section 6.
civil penalty order means an order under paragraph 81(1)(a).
civil remedy provision means:
(a) a Grade A civil remedy provision; or
(b) a Grade B civil remedy provision.
Commonwealth place means a place referred to in paragraph 52(i) of the Constitution, other than the seat of government.
compliance powers means functions and powers conferred on a Federal Safety Officer.
compliance purposes means the purposes referred to in subsection 70(2).
conduct includes an omission.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
copy a document includes take extracts from the document.
corporate Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
disclose means divulge or communicate.
employee has its ordinary meaning, and:
(a) includes an individual who is usually an employee within that meaning; but
(b) does not include an individual on a vocational placement.
employer has its ordinary meaning, and includes a person that is usually an employer within that meaning.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
Federal Safety Commissioner means the Federal Safety Commissioner referred to in section 37.
Federal Safety Officer means:
(a) the Federal Safety Commissioner; or
(b) a person appointed as a Federal Safety Officer under subsection 68(1).
FW Act means the Fair Work Act 2009.
Grade A civil remedy provision means:
(a) a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade A civil penalty”; or
(b) a subsection of this Act that has a note at its foot stating “Grade A civil penalty”.
Note: The maximum penalty for a Grade A civil remedy provision is 1,000 penalty units for bodies corporate, and otherwise 200 penalty units (see subsection 81(2)).
Grade B civil remedy provision means:
(a) a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade B civil penalty”; or
(b) a subsection of this Act that has a note at its foot stating “Grade B civil penalty”.
Note: The maximum penalty for a Grade B civil remedy provision is 100 penalty units for bodies corporate, and otherwise 20 penalty units (see subsection 81(2)).
Greater Sunrise special regime area has the same meaning as in the Seas and Submerged Lands Act 1973.
land has a meaning affected by subsection 6(6).
occupier has the same meaning as in the FW Act.
pre‑construction agreement has the meaning given by subsection 43(8).
premises has the same meaning as in the FW Act.
relevant court means each of the following courts:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) a Supreme Court of a State or Territory;
(d) a District Court, or County Court, of a State.
relevant State or Territory court means each of the following courts:
(a) a District, County or Local Court of a State;
(b) a magistrates court;
(c) the Industrial Relations Court of South Australia;
(d) the Industrial Court of New South Wales;
(e) any other State or Territory court that is prescribed by the rules.
resources platform means an artificial island, installation or structure attached to the seabed for the purpose of exploration for, or exploitation of, resources or for other economic purposes.
Secretary means the Secretary of the Department.
this Act includes the rules and the regulations.
WHS Accreditation Scheme means the Work Health and Safety Accreditation Scheme referred to in section 43.
6 Meaning of building work
(1) Subject to subsections (3), (4) and (5), building work means any of the following activities:
(a) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent;
(b) the construction, alteration, extension, restoration, repair, demolition or dismantling of railways (not including rolling stock) or docks;
(c) the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air‑conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;
(d) any operation that is part of, or is preparatory to, or is for rendering complete, work covered by paragraph (a), (b) or (c), for example:
(i) site clearance, earth‑moving, excavation, tunnelling and boring; or
(ii) the laying of foundations; or
(iii) the erection, maintenance or dismantling of scaffolding; or
(iv) the prefabrication of made‑to‑order components to form part of any building, structure or works, whether carried out on‑site or off‑site; or
(v) site restoration, landscaping and the provision of roadways and other access works;
(e) transporting or supplying goods, to be used in work covered by paragraph (a), (b), (c) or (d), directly to building sites (including any resources platform) where that work is being or may be performed;
but does not include any of the following:
(f) the drilling for, or extraction of, oil or natural gas;
(g) the extraction (whether by underground or surface working) of minerals, including tunnelling or boring, or constructing underground works, for that purpose;
(h) any work that is part of a project for:
(i) the construction, repair or restoration of a single dwelling‑house; or
(ii) the construction, repair or restoration of any building, structure or work associated with a single dwelling‑house; or
(iii) the alteration or extension of a single dwelling‑house, if it remains a single dwelling‑house after the alteration or extension.
(2) To avoid doubt, paragraphs (1)(f) and (g) do not prevent this Act from applying to building work (within the meaning of paragraphs (1)(a) to (e)) that is performed on land in which there is an interest relating to the mining of oil, gas or minerals.
Note: This Act extends to any resources platform, and to certain ships, in the exclusive economic zone or in the waters above the continental shelf (see section 11).
(3) Paragraph (1)(h) does not apply if the project is part of a multi‑dwelling development that consists of, or includes, the construction of at least 5 single dwelling‑houses.
(4) Subject to subsection (5), building work includes any activity that is prescribed by the rules for the purposes of this subsection.
(5) Building work does not include any activity that is prescribed by the rules for the purposes of this subsection.
(6) In this Act:
land includes land beneath water.
10 Extension of Act to Christmas Island and Cocos (Keeling) Islands
(1) This Act extends to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands.
(2) This Act applies in relation to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands with any modifications that are prescribed by the rules.
11 Extension of Act to EEZ and waters above continental shelf
(1) This Act extends to or in relation to:
(a) any resources platform in the exclusive economic zone or in the waters above the continental shelf; and
(b) any ship, in the exclusive economic zone or in the waters above the continental shelf, that is travelling to or from (or both to and from) an Australian port.
Extensions prescribed by rules
(2) Without limiting subsection (1), if the rules prescribe further extensions of this Act, or specified provisions of this Act, to or in relation to the exclusive economic zone or to the waters above the continental shelf, then this Act extends accordingly.
Modifications relating to Greater Sunrise special regime area
(3) Despite subsections (1) and (2), if the rules prescribe modifications of this Act, or specified provisions of this Act, for its operation under subsection (1) or (2) in relation to all or part of the Greater Sunrise special regime area then, so far as this Act would, apart from this subsection, extend to the area or part, it has effect as so modified.
(4) For the purposes of subsection (3), the rules may prescribe different modifications relating to different parts of the Greater Sunrise special regime area.
Extension relating to Greater Sunrise special regime area
(5) Despite subsection 13AB(1) of the Seas and Submerged Lands Act 1973:
(a) an extension of this Act under subsection (1) of this section has effect; and
(b) an extension of this Act, or a provision of this Act, because of rules made for the purposes of subsection (2) of this section may (subject to those rules) have effect;
in relation to acts, omissions, matters and things directly or indirectly connected with the exploration of, or exploitation of the natural resources of, the continental shelf in the Greater Sunrise special regime area. This subsection has effect whether or not the extension is affected by subsection (3) of this section.
12 Geographical application of offences
Division 14 (standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.
Note: The extended geographical application that section 11 gives to this Act will apply to the offences in this Act.
13 Act to bind Crown
(1) This Act binds the Crown in each of its capacities.
(2) Nothing in this Act renders the Commonwealth or a State or Territory liable to be prosecuted for an offence.
Chapter 4—The Federal Safety Commissioner
Part 1—Simplified outline of this Chapter
36 Simplified outline of this Chapter
The Federal Safety Commissioner is an SES position in the Department. The Commissioner has 2 main functions: in relation to work health and safety in building work and the Work Health and Safety Accreditation Scheme.
The Work Health and Safety Accreditation Scheme is a scheme prescribed by the rules. Any person who wishes to carry out building work funded by the Commonwealth or a corporate Commonwealth entity must be accredited by the Federal Safety Commissioner in accordance with the scheme.
Part 2—The Federal Safety Commissioner
37 Federal Safety Commissioner
(1) The Secretary must, by writing, designate a position in the Department as the position of Federal Safety Commissioner.
Note: For creation of positions, see section 77 of the Public Service Act 1999.
(2) That position can only be occupied by an SES employee.
(3) The Federal Safety Commissioner is the SES employee who occupies, or the acting SES employee who is acting in, that position.
(4) An instrument under subsection (1) is not a legislative instrument.
38 Functions of Federal Safety Commissioner
The Federal Safety Commissioner has the following functions:
(aa) promoting the object of this Act (see section 3);
(a) promoting work health and safety in relation to building work undertaken by a constitutional corporation, the Commonwealth or a corporate Commonwealth entity;
(b) performing functions as the accreditation authority for the purposes of the WHS Accreditation Scheme;
(c) promoting the benefits of the WHS Accreditation Scheme and disseminating information about the WHS Accreditation Scheme;
(ca) auditing compliance with National Construction Code performance requirements in relation to building materials;
(d) referring matters to other relevant agencies and bodies;
(e) any other functions conferred on the Federal Safety Commissioner by this Act or by another Act.
39 Minister’s directions to Federal Safety Commissioner
(1) The Minister may, by legislative instrument, give written directions to the Federal Safety Commissioner specifying the manner in which the Federal Safety Commissioner must exercise the powers or perform the functions of the Federal Safety Commissioner under this Act.
(2) The Minister must not give a direction under subsection (1) about a particular case.
(3) The Federal Safety Commissioner must comply with a direction under subsection (1).
(4) Despite anything in section 44 of the Legislation Act 2003, section 42 of that Act (disallowance of legislative instruments) applies to a direction under subsection (1) of this section.
40 Delegation by Federal Safety Commissioner
(1) The Federal Safety Commissioner may, in writing, delegate all or any of his or her powers and functions under this Act to:
(a) a Federal Safety Officer; or
(b) an SES employee or acting SES employee; or
(ba) an APS employee whose duties relate to the performance of the Federal Safety Commissioner’s functions or the exercise of the Federal Safety Commissioner’s powers; or
(c) a person (whether or not an SES employee) prescribed by the rules for the purposes of this paragraph.
(2) In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the Federal Safety Commissioner.
(3) As soon as practicable after delegating any power or function under this section, the Federal Safety Commissioner must publish details of the delegation.
(4) The Federal Safety Commissioner may give a direction for the purposes of subsection (2).
(5) A written direction under subsection (4) that is of general application is a legislative instrument.
(6) A written direction under subsection (4) that relates to a particular case is not a legislative instrument.
41 Acting Federal Safety Commissioner
(1) If an SES employee, or acting SES employee, is acting in the position of Federal Safety Commissioner:
(a) the employee has and may exercise all the powers, and is to perform all the functions and duties, of the occupier of the position of Federal Safety Commissioner; and
(b) this Act, and any other law of the Commonwealth, applies in relation to the employee as if the employee were the occupier of the position of Federal Safety Commissioner.
(2) Anything done by or in relation to a person purporting to act in the position of Federal Safety Commissioner is not invalid merely because the occasion to act had not arisen or had ceased.
42 Consultants
(1) The Federal Safety Commissioner may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Federal Safety Commissioner.
(2) The terms and conditions of the engagement of a person are those determined by the Federal Safety Commissioner in writing.
Part 3—WHS Accreditation Scheme for Commonwealth building work
43 WHS Accreditation Scheme for Commonwealth building work
Accreditation scheme
(1) The rules may prescribe an accreditation scheme, to be known as the Work Health and Safety Accreditation Scheme, for persons who wish to carry out building work funded by the Commonwealth or a corporate Commonwealth entity.
(2) The rules must provide for the Federal Safety Commissioner to be the accrediting authority under the scheme.
(3) The rules may prescribe fees for applications made under the rules.
Commonwealth building work to be carried out by accredited persons
(4) The Commonwealth or a corporate Commonwealth entity must not fund building work unless:
(a) contracts for the building work will be entered into with builders who are accredited persons; and
(b) at the time of the funding, the Commonwealth or corporate Commonwealth entity takes appropriate steps to ensure that builders will be accredited persons when they carry out the building work.
This subsection does not apply to building work prescribed by the rules.
(5) For the purposes of this section, the Commonwealth or a corporate Commonwealth entity funds building work if it:
(a) pays for, or otherwise funds or finances, the building work (whether directly or indirectly); or
(b) facilitates the carrying out of the building work by entering into, or otherwise funding or financing (whether directly or indirectly), a pre‑construction agreement that relates to the building work.
(6) If another provision of a law of the Commonwealth is inconsistent with subsection (4), subsection (4) prevails to the extent of the inconsistency unless the other provision expressly refers to this section.
(7) Failure to comply with subsection (4) does not affect the validity of anything done by the Commonwealth or a corporate Commonwealth entity in relation to building work.
Definitions
(8) In this Act:
builder, in relation to building work, means a person who carries out any of the building work.
pre‑construction agreement means an agreement to lease or transfer land, a building or a part of a building on the condition, or on conditions that include the condition, that building work will be carried out on the land, the building or the part of the building.
Chapter 7—Powers to obtain information
Part 1—Simplified outline of this Chapter
60 Simplified outline of this Chapter
Federal Safety Officers are appointed under this Chapter. Federal Safety Officers have powers, including the power to enter premises, the power to ask a person’s name and address and the power to require persons to produce records or documents.
Intentionally hindering or obstructing a Federal Safety Officer who is exercising any of these powers is prohibited.
Part 3—Powers of Federal Safety Officers
Division 2—Appointment of Federal Safety Officers
68 Federal Safety Officers
(1) The Federal Safety Commissioner may, by written instrument, appoint any of the following persons as a Federal Safety Officer:
(a) a person who is an employee of the Commonwealth or who holds an office or appointment under a law of the Commonwealth;
(b) a person who is an employee of a State or Territory or who holds an office or appointment under a law of a State or Territory;
(c) a consultant engaged under section 42.
(2) The Federal Safety Commissioner must not appoint a person referred to in paragraph (1)(c) as a Federal Safety Officer unless the Federal Safety Commissioner is satisfied that the person is an appropriate person to be appointed as a Federal Safety Officer.
(3) The Federal Safety Commissioner is a Federal Safety Officer by force of this subsection.
(4) In exercising powers or performing functions as a Federal Safety Officer, a Federal Safety Officer appointed under subsection (1) must comply with any directions of the Federal Safety Commissioner.
(5) The Federal Safety Commissioner may give directions for the purposes of subsection (4).
(6) A written direction under subsection (5) that is of general application is a legislative instrument.
(7) A written direction under subsection (5) that relates to a particular case is not a legislative instrument.
69 Identity cards for Federal Safety Officers
(1) The Federal Safety Commissioner must issue an identity card to a Federal Safety Officer appointed under subsection 68(1).
(2) The Minister must issue an identity card to the Federal Safety Commissioner.
Form of identity card
(3) The identity card must:
(a) be in the form approved by the Federal Safety Commissioner; and
(b) contain a recent photograph of the person to whom it is issued.
Federal Safety Officer must carry card
(4) A Federal Safety Officer must carry the identity card at all times when performing functions or exercising powers as a Federal Safety Officer.
Note: The Federal Safety Commissioner is a Federal Safety Officer (see the definition of Federal Safety Officer in section 5).
Offence
(5) A person commits an offence of strict liability if:
(a) the person ceases to be a Federal Safety Officer; and
(b) the person does not, within 14 days of so ceasing, return the person’s identity card to the Federal Safety Commissioner or the Minister (as the case requires).
Penalty: 1 penalty unit.
Exception—card lost or destroyed
(6) Subsection (5) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
Division 3—Powers of Federal Safety Officers
70 Purposes for which powers of Federal Safety Officers may be exercised
Compliance purposes for Federal Safety Officers
(2) A Federal Safety Officer may exercise compliance powers for one or more of the following purposes:
(a) ascertaining whether a constitutional corporation, the Commonwealth or a corporate Commonwealth entity that is an applicant for accreditation meets the accreditation requirements;
(b) ascertaining whether a constitutional corporation, the Commonwealth or a corporate Commonwealth entity that is an accredited person has complied, or is complying, with conditions of the accreditation;
(c) ascertaining whether an accredited person has complied, or is complying, with conditions of the accreditation in respect of building work in a Territory or Commonwealth place.
Functions and powers subject to terms and conditions
(3) The functions and powers of a Federal Safety Officer are subject to any conditions and restrictions specified in his or her instrument of appointment.
71 When powers of Federal Safety Officers may be exercised
A Federal Safety Officer may exercise compliance powers:
(a) at any time during working hours; or
(b) at any other time, if the Federal Safety Officer reasonably believes that it is necessary to do so for compliance purposes.
72 Power of Federal Safety Officers to enter premises
Powers of Federal Safety Officers to enter premises
(2) A Federal Safety Officer may, without force:
(a) enter premises, if the officer reasonably believes that building work is being carried out, or has been carried out by an applicant or accredited person referred to in subsection 70(2); or
(b) enter business premises, if the officer reasonably believes that:
(i) there are records or documents relevant to compliance purposes on the premises, or accessible from a computer on the premises; or
(ii) a person who ordinarily performs work or conducts business at the premises has information relevant to compliance purposes.
Note: Intentionally hindering or obstructing a Federal Safety Officer is prohibited (see section 78).
Limitation on Federal Safety Officers entering premises
(3) Despite paragraph (2)(a), a Federal Safety Officer must not enter a part of premises that is used for residential purposes unless the officer reasonably believes that the work referred to in that paragraph is being performed on that part of the premises.
(4) Despite subparagraph (2)(b)(ii), a Federal Safety Officer must not enter business premises under that subparagraph if the Federal Safety Officer reasonably believes that the person concerned is not at those premises.
73 Showing identity card before entry
A Federal Safety Officer must, before or as soon as practicable after entering premises, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises.
74 Powers of Federal Safety Officers while on premises
Entry other than under subparagraph 72(2)(b)(ii)
(1) A Federal Safety Officer who enters premises under paragraph 72(2)(a) or subparagraph 72(2)(b)(i) may exercise one or more of the following powers while on the premises:
(a) inspect any work, process or object;
(b) interview any person;
(c) require a person to tell the Federal Safety Officer who has custody of, or access to, a record or document;
(d) require a person who has custody of, or access to, a record or document to produce the record or document to the Federal Safety Officer either while the Federal Safety Officer is on the premises, or within a specified period;
(e) inspect, and make copies of, any record or document that:
(i) is on the premises; or
(ii) is accessible from a computer that is on the premises;
(f) take samples of any goods or substances in accordance with any procedures prescribed by the rules.
Note: See also sections 79 (power to keep records or documents), 102 (self‑incrimination) and 104 (certain records and documents are inadmissible).
Entry under subparagraph 72(2)(b)(ii)
(2) A Federal Safety Officer who enters premises under subparagraph 72(2)(b)(ii) may interview the person concerned while on those premises.
Refusing or failing to participate in an interview
(3) A refusal or failure by a person to participate in an interview under this section is not to be treated as conduct covered by section 149.1 of the Criminal Code.
75 Persons assisting Federal Safety Officers
(1) A person may accompany a Federal Safety Officer onto premises to assist the Federal Safety Officer if the Federal Safety Commissioner is satisfied that:
(a) the assistance is necessary and reasonable; and
(b) the person assisting has suitable qualifications and experience to properly assist the Federal Safety Officer.
(2) The person assisting:
(a) may do such things on the premises as the Federal Safety Officer requires to assist the Federal Safety Officer to exercise compliance powers; but
(b) must not do anything that the Federal Safety Officer does not have power to do.
(3) Anything done by the person assisting is taken for all purposes to have been done by the Federal Safety Officer.
76 Power to ask for person’s name and address
(1) A Federal Safety Officer may require a person to tell the Federal Safety Officer the person’s name and address if the Federal Safety Officer reasonably believes that the person has contravened a civil remedy provision.
(2) If the Federal Safety Officer reasonably believes that the name or address is false, the Federal Safety Officer may require the person to give evidence of its correctness.
(3) The person must comply with a requirement under subsection (1) or (2) if:
(a) the Federal Safety Officer advises the person that he or she may contravene a civil remedy provision if he or she fails to comply with the requirement; and
(b) the Federal Safety Officer shows his or her identity card to the person.
Note: Grade B civil penalty.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
77 Power to require persons to produce records or documents
(1) A Federal Safety Officer may require a person, by notice, to produce a record or document to the Federal Safety Officer.
Note: See also sections 79 (power to keep records or documents) and 102 (self‑incrimination).
(2) The notice must:
(a) be in writing; and
(b) be served on the person; and
(c) require the person to produce the record or document at a specified place within a specified period of at least 14 days.
(3) The person must comply with the notice.
Note: Grade B civil penalty.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
78 Hindering or obstructing Federal Safety Officers
A person must not intentionally hinder or obstruct a Federal Safety Officer in exercising his or her compliance powers, or induce or attempt to induce any other person to do so.
Note: Grade A civil penalty.
79 Power to keep records or documents
(1) If a record or document is produced to a Federal Safety Officer in accordance with this Division, the Federal Safety Officer may:
(a) inspect, and make copies of, the record or document; and
(b) keep the record or document for any period that is necessary.
(2) While the Federal Safety Officer keeps a record or document, he or she must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:
(a) the person who produced the record or document;
(b) any person otherwise entitled to possession of the record or document;
(c) a person authorised by a person referred to in paragraph (a) or (b).
Certified copy to be supplied to person entitled to document
(3) A person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy that is certified, by one of the following persons, to be a true copy:
(g) the Federal Safety Commissioner;
(h) a Federal Safety Officer;
(i) an APS employee assisting the Federal Safety Commissioner;
(j) a person engaged as a consultant under section 42.
Treatment of certified copy
(4) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
Chapter 8—Enforcement
Part 1—Simplified outline of this Chapter
80 Simplified outline of this Chapter
An authorised applicant (who may be a person affected by a contravention of a civil remedy provision) may apply to certain courts for an order relating to the contravention. A court may make any order, such as imposing a pecuniary penalty on a person or granting an injunction. This Chapter also includes general rules relating to contraventions of civil remedy provisions (such as who bears burdens of proof, double jeopardy, and the treatment of persons and bodies that are not individuals).
Part 2—Orders for contraventions of civil remedy provisions
Division 1—Obtaining an order for contravention of civil remedy provision
81 Penalty etc. for contravention of civil remedy provision
(1) A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:
(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(c) any other order that the court considers appropriate.
Maximum penalty for civil remedy provisions
(2) The maximum pecuniary penalty is:
(a) for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and
(b) for a Grade B civil remedy provision—100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.
Injunctions
(3) The orders that may be made under paragraph (1)(c) include:
(a) injunctions (including interim injunctions); and
(b) any other orders that the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets.
Pecuniary penalties
(5) A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.
(6) In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.
(7) The Consolidated Revenue Fund is appropriated for the purposes of a debt due to a person other than the Commonwealth in relation to a penalty under paragraph (1)(a).
82 Interest up to judgement
(1) This section applies to an order (other than a civil penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act.
(2) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(3) Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.
83 Conduct contravening more than one civil remedy provision
(1) If conduct constitutes a contravention of 2 or more civil remedy provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
84 Multiple contraventions
(1) A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil remedy provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2) However, any pecuniary penalty imposed must not exceed the sum of the maximum penalties that could be ordered if a separate pecuniary penalty were ordered for each of the contraventions.
85 Proceedings may be heard together
A relevant court may direct that 2 or more proceedings relating to contraventions of civil remedy provisions are to be heard together.
86 Civil evidence and procedure rules for proceedings relating to contraventions of civil remedy provisions
A relevant court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a contravention of a civil remedy provision.
Division 2—Civil proceedings and criminal proceedings
87 Civil proceedings after criminal proceedings
A relevant court may not make a civil penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
88 Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil remedy provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
89 Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil remedy provision regardless of whether an order has been made under this Part against the person in relation to the contravention.
90 Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the information or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil remedy provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
91 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.
Note: A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a civil penalty order in relation to that conduct.
Division 3—Miscellaneous
92 Ancillary contravention of civil remedy provisions
(1) A person must not:
(a) attempt to contravene a civil remedy provision; or
(b) aid, abet, counsel or procure a contravention of a civil remedy provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil remedy provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil remedy provision; or
(e) conspire with others to effect a contravention of a civil remedy provision.
Civil penalty
(2) A person who contravenes subsection (1) in relation to a civil remedy provision is taken to have contravened the provision.
93 Exceptions etc. to civil remedy provisions—burden of proof
If, in proceedings for a civil penalty order against a person for a contravention of a civil remedy provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating the civil remedy provision, then the person bears an evidential burden in relation to that matter.
94 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Chapter 9—Miscellaneous
Part 1—Simplified outline of this Chapter
101 Simplified outline of this Chapter
For persons who are required by this Act to provide information, Part 2 contains provisions relating to self‑incrimination, protection from liability for providing the information and the admissibility of the information provided. The Part also contains rules to protect the privacy of that information, while allowing its disclosure in certain circumstances.
Provisions relating to courts, such as the conferral of power on the Federal Court and appeals from certain State or Territory courts, are dealt with by Part 4.
Certain officials under this Act are protected from civil proceedings under Part 5. That Part also allows the Minister to delegate certain powers, and contains a rule‑making and regulation‑making power.
Part 2—Provisions relating to information
Division 1—Provisions relating to requirements to provide information
102 Self‑incrimination etc.
Excuses that are not available
(1) A person is not excused from producing a record or document under paragraph 74(1)(d) or subsection 77(1), on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability.
Use/derivative use indemnity in relation to other requirements
(3) In the case of an individual who produces a record or document under paragraph 74(1)(d) or subsection 77(1), neither:
(a) the record or document produced; nor
(b) any information, document or thing obtained as a direct or indirect consequence of producing the record or document;
is admissible in evidence against the individual in criminal proceedings, other than proceedings to which subsection (4) of this section applies.
(4) This subsection applies to the following proceedings:
(a) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act (false or misleading information or documents);
(b) proceedings for an offence against section 149.1 of the Criminal Code that relates to this Act (obstruction of Commonwealth officials).
104 Certain records and documents are inadmissible
The following:
(a) any record or document inspected or copied under paragraph 74(1)(e) of which an individual had custody, or to which an individual had access, when it was inspected or copied;
(b) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document described in paragraph (a) of this section;
are not admissible in evidence in criminal proceedings against the individual, other than:
(c) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act (false or misleading information or documents); or
(d) proceedings for an offence against section 149.1 of the Criminal Code that relates to this Act (obstruction of Commonwealth officials).
Division 2—Protecting information acquired for the purposes of this Act
105 Disclosure of information by the Federal Safety Commissioner
Information to which this section applies
(1) This section applies to information that is acquired by any of the following persons in the course of performing functions, or exercising powers, as such a person:
(h) the Federal Safety Commissioner;
(i) a Federal Safety Officer;
(j) an APS employee assisting the Federal Safety Commissioner;
(k) a consultant under section 42.
Disclosure that is necessary or appropriate, or likely to assist administration or enforcement
(2) The Federal Safety Commissioner may disclose, or authorise the disclosure of, the information if the Commissioner reasonably believes:
(a) that it is necessary or appropriate to do so for the purposes of the performance of the Commissioner’s functions or the exercise of the Commissioner’s powers; or
(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.
Disclosure to the Minister
(3) The Federal Safety Commissioner may disclose, or authorise the disclosure of, the information to the Minister if the Commissioner reasonably believes that the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.
Disclosure to the Department
(4) The Federal Safety Commissioner may disclose, or authorise the disclosure of, the information to:
(a) the Secretary; or
(b) an SES employee, or an APS employee, in the Department;
for the purpose of briefing, or considering briefing, the Minister if the Commissioner reasonably believes the disclosure is likely to assist the Minister to consider a complaint or issue in relation to a matter arising under this Act.
Part 4—Provisions relating to courts
113 Jurisdiction of the Federal Court
Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Act.
114 Exercising jurisdiction in the Fair Work Division of the Federal Court
(1) This section applies if:
(a) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act; or
(b) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or
(c) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act; or
(d) a prosecution is instituted in the Federal Court under this Act; or
(e) an appeal is instituted in the Federal Court from a judgement of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act; or
(f) proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or
(g) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act; or
(h) the High Court remits a matter arising under this Act to the Federal Court.
(2) The jurisdiction of the Federal Court is to be exercised in the Fair Work Division of the Federal Court.
115 No limitation on Federal Court’s powers
To avoid doubt, nothing in this Act limits the Federal Court’s powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.
116 Appeals from relevant State or Territory courts
Appeals from original decisions of relevant State or Territory courts
(1) An appeal lies to the Federal Court from a decision of a relevant State or Territory court exercising jurisdiction under this Act.
(2) No appeal lies from a decision of a relevant State or Territory court exercising jurisdiction under this Act, except:
(a) if the court was exercising summary jurisdiction—an appeal, to that court or another relevant State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or
(b) in any case—an appeal as provided for by subsection (1).
Appeals from appellate decisions of relevant State or Territory courts
(3) An appeal lies to the Federal Court from a decision of a relevant State or Territory court made on appeal from a decision that:
(a) was a decision of that court or another relevant State or Territory court of the same State or Territory; and
(b) was made in the exercise of jurisdiction under this Act.
(4) No appeal lies from a decision to which subsection (3) applies, except an appeal as provided for by that subsection.
Leave to appeal not required
(5) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (3).
Part 5—Miscellaneous
118 Federal Safety Commissioner etc. not liable for conduct in good faith
(1) Civil proceedings do not lie for loss, damage or injury of any kind suffered by a person as a result of anything done, or omitted to be done, in good faith and without negligence by a person referred to in subsection (2) in the exercise, or purported exercise, of functions, powers or duties under, or in relation to, this Act.
(2) The persons are:
(b) the Federal Safety Commissioner; and
(c) a Federal Safety Officer; and
(d) an APS employee assisting the Federal Safety Commissioner; and
(e) a person engaged as a consultant under section 42.
120 Rules and regulations
Rules
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the rules may make provision for, and in relation to, the following:
(a) the manner in which, and the time within which, applications under this Act may be made and dealt with;
(b) the form of notices that are required or permitted to be given under this Act.
(3) Despite subsection 12(2) of the Legislation Act 2003, the first rules made for the purposes of subsection 6(4) or (5) (meaning of building work) or 10(2) (extension of Act to Christmas Island and Cocos (Keeling) Islands) may be expressed to take effect from the commencement of the subsection for which the rules are made, if those rules are made within 120 days after this subsection commences.
Regulations
(4) The Governor‑General may make regulations prescribing:
(aa) matters required or permitted by this Act to be prescribed by the regulations; or
(ab) matters necessary or convenient to be prescribed for carrying out or giving effect to this Act; or
(a) penalties for offences against the rules, not exceeding a fine of 10 penalty units; or
(b) civil penalties for contraventions of the rules, not exceeding:
(i) for a body corporate—25 penalty units; or
(ii) in any other case—5 penalty units.
