C2011A00137 — Work Health and Safety Act 2011

1 Short title This Act may be cited as the Work Health and Safety Act 2011 . 2 Commencement This Act commences on 1 January 2012. 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and (b) providing for fair and effective workplace representation, consultation, co ‑ operation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work health and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable. 4 Definitions In this Act: approved code of practice means a code of practice approved under Part 14. ASIS means the Australian Secret Intelligence Service. Australia , when used in its geographical sense, includes the external Territories. Australian Border Force has the same meaning as in the Australian Border Force Act 2015 . Australian Border Force Commissioner has the same meaning as in the Australian Border Force Act 2015 . Australian Border Force worker means the following persons: (a) a person who is covered by paragraph (a) of the definition of Immigration and Border Protection worker in subsection 4(1) of the Australian Border Force Act 2015 and who is in the Australian Border Force or whose services are made available to the Australian Border Force; (b) a person who is covered by paragraph (b), (c), (d), (e) or (f) of that definition and whose services are made available to, or who is performing services for, the Australian Border Force. authorised , in Part 4—see section 40. authorised person , for a body corporate, in Division 4 of Part 13—see section 244. authorised person , for the Commonwealth, in Division 5 of Part 13—see section 245. authorising authority means the Fair Work Commission. board of directors , of a body corporate, in Division 4 of Part 13—see section 244. category 1 monetary penalty —see clause 1 of Schedule 4. Category 1 offence —see section 31. category 2 monetary penalty —see clause 1 of Schedule 4. Category 2 offence —see section 32. category 3 monetary penalty —see clause 1 of Schedule 4. Category 3 offence —see section 33. Comcare means the body corporate established under section 68 of the Safety, Rehabilitation and Compensation Act 1988 . Commonwealth includes any person or body, other than a public authority, that is a non ‑ corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 ). compliance powers means the functions and powers conferred on an inspector under this Act. condition includes limitation and restriction. construct includes assemble, erect, reconstruct, reassemble and re ‑ erect. corresponding regulator means a regulator under a corresponding WHS law. corresponding WHS law means each of the following: (a) the Work Health and Safety Act 2011 of New South Wales; (b) the Occupational Health and Safety Act 2004 of Victoria; (c) the Work Health and Safety Act 2011 of Queensland; (d) the Work Health and Safety Act 2020 of Western Australia; (e) the Work Health and Safety Act 2012 of South Australia; (f) the Work Health and Safety Act 2012 of Tasmania; (g) the Work Health and Safety Act 2011 of the Australian Capital Territory; (h) the Work Health and Safety (National Uniform Legislation) Act 2011 (NT); (i) any other law of a State or Territory prescribed by the regulations. court means: (a) the Federal Court of Australia; and (b) the Federal Circuit and Family Court of Australia (Division 2); and (c) the Supreme Court of a State or of the Australian Capital Territory or the Northern Territory; and (d) a court of a State or Territory prescribed by the regulations for the purposes of section 273A. dangerous incident , in Part 3—see section 37. demolition includes deconstruction. design , in relation to plant, a substance or a structure includes: (a) design of part of the plant, substance or structure; and (b) redesign or modify a design. disclose , in relation to information, includes divulge or communicate to any person or publish. discriminatory conduct , in Part 6—see section 105. document includes record. emergency services worker means: (a) a member of 1 of the following: (i) a police force or service; (ii) a fire service; (iii) an ambulance service; (iv) a coast guard service, rescue service or emergency service; (v) any other organisation prescribed by the regulations for the purposes of this subparagraph; or (b) a member of the Defence Force who is engaged in civil emergency or disaster relief operations; or (c) a person who is an emergency services worker under a corresponding WHS law. employee record , in relation to an employee, has the same meaning as it has in the Privacy Act 1988 . employer organisation means an organisation of employers. engage in conduct means doing an act or omitting to do an act. executive , of an agency of the Commonwealth, in Division 5 of Part 13—see section 245. Fair Work Act means the Fair Work Act 2009 . Fair Work Commission means the body continued in existence under section 575 of the Fair Work Act 2009 . fault element , in relation to an offence, has the same meaning as in the Criminal Code . handling includes transport. health means physical and psychological health. health and safety duty —see section 30. health and safety representative , in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member. Immigration and Border Protection Secretary means the Secretary of the Department administered by the Minister administering the Australian Border Force Act 2015 . import means to bring into the jurisdiction from outside Australia. inspector means an inspector appointed under Part 9. internal reviewer means: (a) the regulator; or (b) a person appointed by the regulator under section 225. legal practitioner means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory. local authority means a local authority under a corresponding WHS law. medical treatment means treatment by a medical practitioner registered or licensed under a State or Territory law that provides for the registration or licensing of medical practitioners. modifications include additions, omissions and substitutions. non ‑ Commonwealth licensee means a body corporate that was a non ‑ Commonwealth licensee for the purposes of the Occupational Health and Safety Act 1991 immediately before the commencement of this Act. notifiable incident —see section 35. officer , of an entity, means: (a) if the entity is the Commonwealth—an officer of the Commonwealth within the meaning of section 247; or (b) if the entity is a public authority—an officer of the public authority within the meaning of section 252; or (c) in Division 5 of Part 13, if the entity is an agency of the Commonwealth—an officer of the agency within the meaning of section 245; or (d) if paragraphs (a), (b) and (c) of this definition do not apply—an officer of the entity within the meaning of section 9 of the Corporations Act 2001 other than, if the entity is a partnership, a partner in the partnership; but does not include, if the entity is a local authority, an elected member of the local authority acting in that capacity. official of a union , in Part 7—see section 116. parliamentarian means: (a) a Senator; or (b) a Member of the House of Representatives; or (c) a Minister of State who is not a Senator or Member of the House of Representatives; or (d) a person who is taken to be the President of the Senate under the Parliamentary Presiding Officers Act 1965 and who is not a Senator or Member of the House of Representatives; or (e) a person who is taken to be the Speaker of the House of Representatives under the Parliamentary Presiding Officers Act 1965 and who is not a Senator or Member of the House of Representatives; or (f) any other person to whom remuneration is payable under section 49 of the Parliamentary Business Resources Act 2017 . personal information has the same meaning as it has in the Privacy Act 1988 . person conducting a business or undertaking —see section 5. physical element , in relation to an offence, has the same meaning as in the Criminal Code . plant includes: (a) any machinery, equipment, appliance, container, implement and tool; and (b) any component of any of those things; and (c) anything fitted or connected to any of those things. prohibited reason , in Part 6—see section 106. public authority means: (a) a body corporate established for a public purpose by or under a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory or the Northern Territory), but does not include a body corporate prescribed by the regulations to be a body corporate to which this Act does not apply; and (b) a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 , other than a Commonwealth company prescribed by the regulations to be a Commonwealth company to which this Act does not apply; and (c) a body corporate prescribed by the regulations to be a public authority for the purposes of this Act. reasonably practicable , in relation to a duty to ensure health and safety—see section 18. regulator means Comcare. relevant person conducting a business or undertaking, in Part 7—see section 116. relevant State or Territory industrial law , in Part 7—see section 116. relevant union , in Part 7—see section 116. relevant worker , in Part 7—see section 116. representative , in relation to a worker, means: (a) the health and safety representative for the worker; or (b) a union representing the worker; or (c) any other person the worker authorises to represent him or her. serious injury or illness , in Part 3—see section 36. State includes the Australian Capital Territory and the Northern Territory. State or Territory industrial law has the same meaning as it has in the Fair Work Act. structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes: (a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and (b) any component of a structure; and (c) part of a structure. substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. supply —see section 6. this Act includes the regulations. tier A monetary penalty —see clause 2 of Schedule 4. tier B monetary penalty —see clause 2 of Schedule 4. tier C monetary penalty —see clause 2 of Schedule 4. tier D monetary penalty —see clause 2 of Schedule 4. tier E monetary penalty —see clause 2 of Schedule 4. tier F monetary penalty —see clause 2 of Schedule 4. tier G monetary penalty —see clause 2 of Schedule 4. tier H monetary penalty —see clause 2 of Schedule 4. tier I monetary penalty —see clause 2 of Schedule 4. union means: (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out ‑ of ‑ pocket expenses). WHS civil penalty provision tier 1 —see clause 3 of Schedule 4. WHS civil penalty provision tier 2 —see clause 3 of Schedule 4. WHS civil penalty provision tier 3 —see clause 3 of Schedule 4. WHS civil penalty provision tier 4 —see clause 3 of Schedule 4. WHS entry permit means a WHS entry permit issued under Part 7 or the equivalent Part of a corresponding WHS law. WHS entry permit holder means a person who holds a WHS entry permit. WHS undertaking means an undertaking given under section 216(1). worker —see section 7. work group means a work group determined under Part 5. workplace —see section 8. 5 Meaning of person conducting a business or undertaking (1) For the purposes of this Act, a person conducts a business or undertaking : (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. (5) An elected member of a local authority does not in that capacity conduct a business or undertaking. (6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (7) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. 6 Meaning of supply (1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire ‑ purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. (3) A supply of a thing does not include: (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or (b) a prescribed supply. (4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if: (a) the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and (b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer. 7 Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) a student gaining work experience; or (h) a volunteer; or (i) a person of a prescribed class. (2) For the purposes of this Act, the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979 ) is: (a) a worker; and (b) at work throughout the time when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and (d) an employee of the Commonwealth. (2A) For the purposes of this Act, a member of the Defence Force is: (a) a worker; and (b) at work throughout the time when the person is lawfully performing the functions of a member of the Defence Force, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and (d) an employee of the Commonwealth. (2B) For the purposes of this Act, a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory or the Northern Territory) is: (a) a worker; and (b) at work throughout the time when the person is lawfully performing the functions of that office, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and (d) an employee of the Commonwealth. (2C) For the purposes of this Act, a person who constitutes, or is acting as the person constituting, a public authority is: (a) a worker; and (b) at work throughout the time when the person is lawfully performing the functions of that authority, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and (d) an employee of the public authority. (2D) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a public authority is: (a) a worker; and (b) at work throughout the time when the person is lawfully performing the functions of the public authority, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and (d) an employee of the public authority. (2E) For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority is: (a) a worker; and (b) at work throughout the time when the person is lawfully performing the functions of the body, but not otherwise; and (c) carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and (d) an employee of the public authority. (2F) The Minister may, by instrument in writing, declare that a person of a class specified in the declaration is, for the purposes of this Act: (a) a worker; and (b) at work throughout the time specified in the declaration; and (c) carrying out work for a business or undertaking conducted by the Commonwealth, or a public authority specified in the declaration, when the person is performing functions of the kind specified in the declaration; and (d) an employee of the Commonwealth, or a public authority specified in the declaration. (2G) A declaration under subsection (2F) may only be made in relation to a class of persons if persons of that class engage in activities or perform acts: (a) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by the Commonwealth, or are employees of the Commonwealth: (i) at the request or direction of the Commonwealth; or (ii) for the benefit of the Commonwealth; or (iii) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory or the Northern Territory); or (b) where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by a public authority specified in the declaration, or are employees of a public authority specified in the declaration: (i) at the request or direction of the public authority; or (ii) for the benefit of the public authority. (2H) A declaration under subsection (2F) has effect according to its terms. (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. 8 Meaning of workplace (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section, place includes: (a) a vehicle, vessel, aircraft or other mobile structure; and (b) any waters and any installation on land, on the bed of any waters or floating on any waters. 9 Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) A note at the foot of a provision forms part of this Act. 10 Act binds the Commonwealth (1) This Act binds the Commonwealth. (2) The Commonwealth is liable for an offence against this Act. (3) Without limiting subsection (1), the Commonwealth is liable for a contravention of a WHS civil penalty provision. 11 Extraterritorial application This Act extends to every external Territory. 12 Scope The Commonwealth and public authorities (1) This Act applies in relation to each of the following: (a) if the Commonwealth is conducting a business or undertaking: (i) the Commonwealth; and (ii) an officer of the Commonwealth; (b) if a public authority is conducting a business or undertaking: (i) the public authority; and (ii) an officer of the public authority; (c) to the extent that a person is a worker and carries out work in any capacity for a business or undertaking conducted by the Commonwealth or a public authority—that person; (d) to the extent that a person is a worker and is taken to carry out work for a business or undertaking conducted by the Commonwealth or a public authority because of section 7—that person; (e) if work is carried out by a worker at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the Commonwealth or a public authority—that place; (f) if work is taken to be carried out by a worker at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the Commonwealth or a public authority because of section 7—that place. (2) For the purposes of this Act, the administration of the Australian Capital Territory or the Northern Territory is not a business or undertaking conducted by the Commonwealth. (3) A corresponding WHS law does not apply in relation to the Commonwealth or a public authority. Non ‑ Commonwealth licensees (4) During the transitional period for a non ‑ Commonwealth licensee, this Act applies in relation to each of the following: (a) if the non ‑ Commonwealth licensee is conducting a business or undertaking—the non ‑ Commonwealth licensee; (b) to the extent that a person carries out work in any capacity for the non ‑ Commonwealth licensee—the person; (c) if work is carried out at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the non ‑ Commonwealth licensee—that place. (5) During the transitional period for a non ‑ Commonwealth licensee, a corresponding WHS law does not apply in relation to the non ‑ Commonwealth licensee. (6) The transitional period for a non ‑ Commonwealth licensee: (a) begins on the commencement of this Act; and (b) ends on a day prescribed by the regulations for the non ‑ Commonwealth licensee, or a class of non ‑ Commonwealth licensees of which the non ‑ Commonwealth licensee is a member. (7) The regulations may make provisions of a transitional, application or saving nature relating to non ‑ Commonwealth licensees. (8) Without limiting subsection (7), regulations made for the purposes of that subsection may make modifications to the provisions of this Act, the Occupational Health and Safety Act 1991 and any instrument made under this Act or the Occupational Health and Safety Act 1991 . Concurrent operation (9) Both this Act and a corresponding WHS law may apply in relation to a worker or a workplace. Double jeopardy (10) If a person is convicted of an offence under this Act in relation to an act or omission, the person is not liable to be convicted of the same offence under a corresponding WHS law in relation to the same act or omission. (11) If a person is convicted of an offence under a corresponding WHS law in relation to an act or omission, the person is not liable to be convicted of the same offence under this Act in relation to the same act or omission. (12) If a monetary penalty is imposed on a person under this Act in relation to an act or omission that contravenes a WHS civil penalty provision, the person is not liable to a monetary penalty under a corresponding WHS law for the contravention of the same WHS civil penalty provision under that law by the same act or omission. (13) If a monetary penalty is imposed on a person under a corresponding WHS law in relation to an act or omission that contravenes a WHS civil penalty provision, the person is not liable to a monetary penalty under this Act for the contravention of the same WHS civil penalty provision under this Act by the same act or omission. 12A Act does not apply to certain vessels, structures and facilities (1) This Act does not apply in relation to any vessel (including a ship or a barge) or any structure to which the Occupational Health and Safety (Maritime Industry) Act 1993 applies. (2) This Act does not apply in relation to a facility to which Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 applies. 12B Duty to consult etc. where law of more than one jurisdiction applies to the same matter If a person has a duty in relation to a matter under this Act and another person has a duty under a corresponding WHS law in relation to the same matter, the person who has the duty under this Act must consult, co ‑ operate and co ‑ ordinate activities with the other person. 12C Act not to prejudice national security (1) Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s national security. (2) Without limiting the generality of subsection (1), the Director ‑ General of Security may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to a person carrying out work for the Director ‑ General of Security. (2A) Without limiting the generality of subsection (1), the Director ‑ General of ASIS may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to a person carrying out work for the Director ‑ General of ASIS. (2AA) Without limiting the generality of subsection (1), the Director ‑ General of the Australian Signals Directorate may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to a person carrying out work for the Director ‑ General of the Australian Signals Directorate. (2B) Without limiting the generality of subsection (1), the Australian Border Force Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to an Australian Border Force worker. (2C) The Australian Border Force Commissioner must consult the Immigration and Border Protection Secretary and the Director ‑ General of Security before making an instrument under subsection (2B). (3) A declaration under subsection (2), (2A), (2AA) or (2B) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. (4) In administering the Australian Security Intelligence Organisation and in the exercise of the power under subsection (2), the Director ‑ General of Security must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s national security. (5) In administering the Australian Secret Intelligence Service and in the exercise of the power under subsection (2A), the Director ‑ General of ASIS must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of national security. (5A) In administering the Australian Signals Directorate and in the exercise of the power under subsection (2AA), the Director ‑ General of the Australian Signals Directorate must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of national security. (6) In controlling the operations of the Australian Border Force and in the exercise of the power under subsection (2B), the Australian Border Force Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s national security. 12D Act not to prejudice Australia’s defence (1) Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s defence. (2) Without limiting the generality of subsection (1), the Chief of the Defence Force may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to such modifications as are set out in the declaration, in relation to: (a) a specified activity; or (b) a specified member of the Defence Force; or (c) members of the Defence Force included in a specified class of such members. (2A) Without limiting the generality of subsection (1), the Australian Border Force Commissioner may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to such modifications as are set out in the declaration, in relation to: (a) a specified operation of the Australian Border Force; or (b) a specified Australian Border Force worker; or (c) Australian Border Force workers included in a specified class of such workers. (2B) The Australian Border Force Commissioner must consult the Immigration and Border Protection Secretary and the Chief of the Defence Force before making an instrument under subsection (2A). (3) A declaration under subsection (2) or (2A) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. (4) In the exercise of the power under subsection (2), the Chief of the Defence Force must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s defence. (5) In the exercise of the power under subsection (2A), the Australian Border Force Commissioner must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s defence. 12E Act not to prejudice certain police operations (1) Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to: (a) an existing or future covert operation of the Australian Federal Police; or (b) an existing or future international operation of the Australian Federal Police. Note 1: Under section 12C, this Act does not require or permit a person to take action or refrain from taking action if that action would be, or could reasonably be expected to be, prejudicial to Australia’s national security. This might occur, for example, where the Australian Federal Police work in cooperation with an intelligence agency or respond to an imminent terrorist threat. Note 2: Under section 12D, this Act does not require or permit a person to take action or refrain from taking action if that action would be, or could reasonably be expected to be, prejudicial to Australia’s defence. (2) In this section: AFP appointee has the same meaning as in the Australian Federal Police Act 1979 . covert operation means the performance of a function or service under section 8 of the Australian Federal Police Act 1979 where knowledge of the operation by an unauthorised person, may: (a) reduce the effectiveness of the performance of the function or service; or (b) expose a person to the danger of physical harm or death arising from the actions of another person. Note: A covert operation might, for example, include an undercover operation to identify those involved in drug trafficking, but would not include general duties policing. international operation means an operation to maintain order in a foreign country where: (a) because of the environment in which the operation is undertaken, it is not reasonably practicable to eliminate risks to the health and safety of an AFP appointee involved in the operation; and (b) the Commissioner of the Australian Federal Police has taken all steps reasonably practicable to minimise risks to the health and safety of an AFP appointee involved in the operation. unauthorised person in relation to a covert operation, means a person, including an AFP appointee, who is not involved in the approval, planning or execution of the operation. 12F Interaction with Commonwealth criminal law Application of the Crimes Act 1914 (1) Section 4AB of the Crimes Act 1914 does not apply to the provisions of this Act. Application of the Criminal Code (2) Strict liability applies to each physical element of each offence under this Act, unless otherwise stated. (3) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against this Act. (4) Part 2.5 of the Criminal Code (which deals with corporate criminal responsibility) does not apply to an offence against this Act. Note: For the purposes of this Act, corporate criminal responsibility is dealt with by Division 4 of Part 13 of this Act. 13 Principles that apply to duties This Subdivision sets out the principles that apply to all duties that persons have under this Act. Note: The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation. 14 Duties not transferrable A duty cannot be transferred to another person. 15 Person may have more than 1 duty A person can have more than 1 duty by virtue of being in more than 1 class of duty holder. 16 More than 1 person can have a duty (1) More than 1 person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than 1 person has a duty for the same matter, each person: (a) retains responsibility for the person’s duty in relation to the matter; and (b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable , in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and (b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available; the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self ‑ employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note: A self ‑ employed person is also a person conducting a business or undertaking for the purposes of this section. 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include: (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces (1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include: (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. (2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures (1) This section applies to a person (the designer ) who conducts a business or undertaking that designs: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or (b) who handle the substance at a workplace; or (c) who store the plant or substance at a workplace; or (d) who construct the structure at a workplace; or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or Example: Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning: (a) each purpose for which the plant, substance or structure was designed; and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e). 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures (1) This section applies to a person (the manufacturer ) who conducts a business or undertaking that manufactures: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or (b) who handle the substance at a workplace; or (c) who store the plant or substance at a workplace; or (d) who construct the structure at a workplace; or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Example: Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured; and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e). 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures (1) This section applies to a person (the importer ) who conducts a business or undertaking that imports: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons: (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or (b) who handle the substance at a workplace; or (c) who store the plant or substance at a workplace; or (d) who construct the structure at a workplace; or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Example: Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The importer must: (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured; and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e). 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures (1) This section applies to a person (the supplier ) who conducts a business or undertaking that supplies: (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons: (a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or (b) who handle the substance at a workplace; or (c) who store the plant or substance at a workplace; or (d) who construct the structure at a workplace; or (e) who carry out any reasonably foreseeable activity at a workplace in relation to: (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Example: Inspection, storage, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The supplier must: (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning: (a) each purpose for which the plant, substance or structure was designed or manufactured; and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)(a) to (e). 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures (1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons: (a) who install or construct the plant or structure at a workplace; or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). 27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep up ‑ to ‑ date knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Examples: For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include: (a) reporting notifiable incidents; (b) consulting with workers; (c) ensuring compliance with notices issued under this Act; (d) ensuring the provision of training and instruction to workers about work health and safety; (e) ensuring that health and safety representatives receive their entitlements to training. 28 Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) co ‑ operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 29 Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act. 30 Health and safety duty In this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part. 30A Industrial manslaughter (1) A person commits an offence if: (a) the person is: (i) a pers