New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Work Health and Safety Legislation
Amendment Bill 2011
No , 2011
A Bill for
An Act to amend the Work Health and Safety Act 2011 to make further provision for
the commencement, administration and operation of that Act; and to make
consequential and other amendments to certain other Acts.
Clause 1 Work Health and Safety Legislation Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Work Health and Safety Legislation Amendment 3
Act 2011. 4
2 Commencement 5
(1) Except as otherwise provided by this section, this Act commences on 6
1 January 2012 or on such later day as may be appointed by 7
proclamation before 1 January 2012. 8
(2) Schedules 1 [1] and 2 [14] and [15] commence on the date of assent to 9
this Act. 10
(3) Schedules 2 (except Schedule 2 [14] and [15]) and 3 commence on a day 11
or days to be appointed by proclamation. 12
Page 2
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Work Health and Safety Act 2011 No 10 Schedule 1
Schedule 1 Amendment of Work Health and Safety 1
Act 2011 No 10 2
[1] Section 2 3
Omit the section. Insert instead: 4
2 Commencement 5
This Act commences on 1 January 2012 or on such later day as 6
may be appointed by proclamation before 1 January 2012. 7
[2] Section 4 Definitions 8
Omit the definition of inspector. Insert instead: 9
inspector means an inspector appointed under Part 9 or deemed 10
to be an inspector under that Part. 11
[3] Section 4, definition of "member of staff" 12
Insert in alphabetical order: 13
member of staff of a regulator means, in the case of the head of 14
the Department of Trade and Investment, Regional Infrastructure 15
and Services, a member of staff of that Department. 16
[4] Section 4, definition of "regulator" 17
Omit the definition. Insert instead: 18
regulator means: 19
(a) the WorkCover Authority constituted under the Workplace 20
Injury Management and Workers Compensation Act 1998, 21
unless paragraph (b) applies, or 22
(b) in relation to matters or the exercise of a power or function 23
concerning a mining workplace or a coal workplace--the 24
head of the Department of Trade and Investment, Regional 25
Infrastructure and Services. 26
[5] Section 38 Duty to notify of notifiable incidents 27
Omit section 38 (8). Insert instead: 28
(8) Despite subsection (1), a person is not required to give notice 29
under this section of an incident that occurs at a mine to which the 30
Mine Health and Safety Act 2004 applies or at a coal workplace. 31
Page 3
Work Health and Safety Legislation Amendment Bill 2011
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[6] Section 154 1
Insert after section 153: 2
154 Delegation by regulator 3
(1) The regulator may, by instrument in writing, delegate to an 4
authorised person a power or function under this Act other than 5
this power of delegation. 6
(2) A delegation under this section: 7
(a) may be made subject to such conditions as the regulator 8
thinks fit, and 9
(b) is revocable at will, and 10
(c) does not derogate from the power of the regulator to act. 11
(3) In this section: 12
authorised person means: 13
(a) a member of staff of the regulator, or 14
(b) a person of a class prescribed by the regulations or of a 15
class approved by the regulator. 16
[7] Section 156A Special provision for mining and coal workplace 17
inspectors 18
Omit "is an inspector" from section 156A (2) and (3) wherever occurring. 19
Insert instead "is deemed to be an inspector". 20
[8] Section 162A Exercise of inspector functions outside area of jurisdiction 21
Omit "regulator" from paragraph (a) of the definition of appropriate authority 22
in section 162A (7). 23
Insert instead "WorkCover Authority". 24
[9] Section 165A Special powers of entry for coal and mining workplaces 25
Insert after section 165A (2): 26
(3) In this section: 27
authorised representative of an industrial organisation of 28
employees, means a person who is an authorised industrial 29
officer within the meaning of Part 7 (Entry and inspection by 30
officers of industrial organisations) of Chapter 5 of the Industrial 31
Relations Act 1996 in respect of that industrial organisation of 32
employees. 33
Page 4
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Work Health and Safety Act 2011 No 10 Schedule 1
[10] Section 229A Part extends to mines and coal workplaces 1
Omit section 229A (2). Insert instead: 2
(2) For the purposes of those proceedings, a reference in this Part to 3
this Act or the regulations includes a reference to those Acts or 4
those regulations. 5
[11] Section 229B Procedure for offences 6
Omit section 229B (5). 7
[12] Section 252 Officer of public authority 8
Insert at the end of the section: 9
(2) A Minister of a State or the Commonwealth is not in that capacity 10
an officer for the purposes of this Act. 11
[13] Section 271A 12
Insert after section 271: 13
271A Information sharing between regulators 14
(1) A regulator or a member of staff of a regulator is authorised to 15
disclose information or give access to a document to the other 16
regulator or a member of staff of the other regulator if the 17
disclosure or giving of access is for the purpose of assisting the 18
other regulator to exercise the powers or functions of the other 19
regulator under this Act, the Mine Health and Safety Act 2004 or 20
the Coal Mine Health and Safety Act 2002. 21
(2) Section 271 applies to the use of information or a document that 22
a person obtains or gains access to as a result of the disclosure of 23
the information or the giving of access to the document as 24
authorised by this section, as if the person had obtained the 25
information or gained access to the document in exercising a 26
power or function under this Act. 27
(3) Section 271 (2) does not apply to the disclosure of information or 28
giving of access to a document as authorised by this section. 29
[14] Section 276A Application of Act to mining workplaces and coal 30
workplaces--references to regulator 31
Omit the section. 32
Page 5
Work Health and Safety Legislation Amendment Bill 2011
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
[15] Schedule 4 Savings, transitional and other provisions 1
Insert after clause 1 (3): 2
(4) A provision referred to in subclause (1) has effect, if the 3
regulations so provide, despite any other clause of this Schedule. 4
(5) The power to make regulations under subclause (1) extends to 5
authorise the making of regulations whereby the provisions of 6
this Act are deemed to be amended in a specified manner, but any 7
regulation made pursuant to this clause: 8
(a) may only be made for or with respect to matters for or with 9
respect to which this Act makes provision, and 10
(b) may not be made so as to have effect after 31 December 11
2012, and 12
(c) ceases to have effect, unless sooner revoked or otherwise 13
ceasing to have effect, on 31 December 2012. 14
[16] Schedule 4, clause 5 15
Omit clause 5 (2). Insert instead: 16
(2) An identification card issued to the inspector under the OHS Act 17
(or to a person taken to have been appointed as an inspector under 18
section 47A or 47B of the OHS Act) is taken to be an identity card 19
issued under this Act until its replacement under this Act, and 20
may be used by an inspector under this Act even though it refers 21
to provisions of the OHS Act. 22
[17] Schedule 4, clause 7 23
Omit the clause. Insert instead: 24
7 Continuation of repealed Regulations 25
Without limiting clause 1, the regulations under that clause may 26
make provision for or with respect to: 27
(a) the continued operation after the commencement of this 28
Act of a regulation or provision of a regulation made or 29
continued in operation by or under the OHS Act or by or 30
under an Act repealed by the OHS Act, or 31
(b) anything done under any such regulation or provision and 32
having any force or effect immediately before the 33
commencement of this Act. 34
Page 6
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Work Health and Safety Act 2011 No 10 Schedule 1
[18] Schedule 4, clause 8 1
Omit "or exemption". Insert instead ", exemption or other instrument". 2
[19] Schedule 4, Part 3 3
Insert after clause 9: 4
Part 3 Provisions consequent on enactment of 5
Work Health and Safety Legislation 6
Amendment Act 2011 7
10 Definitions 8
In this Part: 9
amending Act means the Work Health and Safety Legislation 10
Amendment Act 2011. 11
OHS Act means the Occupational Health and Safety Act 2000. 12
11 Amendment of Coal Mine Health and Safety Act 2002 13
(1) Section 8B of the Coal Mine Health and Safety Act 2002 (the 14
CMHS Act) extends to matters arising before the commencement 15
of this Act as if a reference in that section to this Act included a 16
reference to the OHS Act. 17
(2) A reference to this Act in section 14, 15 or 16 of the CMHS Act 18
includes a reference to the OHS Act in relation to an offence 19
committed before the commencement of this Act. 20
(3) A site-specific occupational health and safety management plan 21
prepared for the purposes of section 75 of the CMHS Act that is 22
in force immediately before the commencement of this Act is 23
taken to have been prepared as a site-specific work health and 24
safety management plan. 25
(4) A reference to this Act in section 175 of the CMHS Act includes 26
a reference to the OHS Act in relation to a failure that occurs 27
before the commencement of this Act. 28
(5) A reference to this Act in section 191 of the CMHS Act includes 29
a reference to the OHS Act in relation to an offence committed 30
before the commencement of this Act. 31
(6) A reference to this Act in section 220 of the CMHS Act includes 32
a reference to the OHS Act in relation to a matter or thing done 33
or omitted before the commencement of this Act. 34
Page 7
Work Health and Safety Legislation Amendment Bill 2011
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
(7) A reference to the OHS Act in clause 27 (Validation) of 1
Schedule 3 to the CMHS Act includes a reference to this Act if 2
the relevant date under that clause is after the commencement of 3
this Act. 4
12 Amendment of Crimes (Sentencing Procedure) Act 1999 5
Section 27 of the Crimes (Sentencing Procedure) Act 1999 6
continues to apply as it was in force before the commencement of 7
this Act to and in relation to an offence against Division 1 of 8
Part 2 of the OHS Act committed before the commencement of 9
this Act. 10
13 Amendment of Criminal Procedure Act 1986 11
Sections 215 and 257D of the Criminal Procedure Act 1986 12
continue to apply as it was in force before the commencement of 13
this Act to and in respect of proceedings for an offence 14
committed before that commencement. 15
14 Amendment of Industrial Relations Act 1996 16
(1) There is no right of appeal under section 197A (Appeals against 17
acquittals in proceedings for offences against occupational health 18
and safety legislation) of the Industrial Relations Act 1996 (the 19
IR Act) after the repeal of that section, except as provided by 20
subclause (2). 21
(2) Section 197A of the IR Act continues to apply (despite its repeal) 22
to and in relation to an appeal commenced under that section 23
before its repeal. 24
(3) Section 210 (1) (j) of the IR Act continues to apply as it was in 25
force before the commencement of this Act to and in relation to: 26
(a) any complaint made about a workplace matter (as referred 27
to in that provision) before the repeal of that provision, and 28
(b) the exercise before the repeal of that provision of any 29
function conferred under Division 2 of Part 2 of the OHS 30
Act. 31
(4) Section 383A (a) of the IR Act continues to apply (despite its 32
repeal) to and in relation to the recovery of any amount ordered 33
to be paid under section 114 of the OHS Act by the Local Court 34
constituted by an Industrial Magistrate before the repeal of that 35
provision. 36
Page 8
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Work Health and Safety Act 2011 No 10 Schedule 1
15 Amendment of Mine Health and Safety Act 2004 1
(1) Section 8 of the Mine Health and Safety Act 2004 (the MHS Act) 2
extends to matters arising before the commencement of this Act 3
as if a reference in that section to this Act included a reference to 4
the OHS Act. 5
(2) A reference to this Act in sections 18, 19 and 20 of the MHS Act 6
includes a reference to the OHS Act in relation to an offence 7
committed before the commencement of this Act. 8
(3) A reference to this Act in section 100 of the MHS Act includes a 9
reference to the OHS Act in relation to a serious breach of a 10
provision of the OHS Act or the regulations under that Act that 11
occurs before the commencement of this Act. 12
(4) A reference to this Act in section 164 of the MHS Act includes a 13
reference to the OHS Act in relation to a failure that occurs before 14
the commencement of this Act. 15
(5) A reference to this Act in section 189 of the MHS Act includes a 16
reference to the OHS Act in relation to a matter or thing done or 17
omitted before the commencement of this Act. 18
16 Amendment of Mining Act 1992 19
A reference to this Act in section 378E of the Mining Act 1992 20
includes a reference to the OHS Act in relation to an order or 21
direction given before the commencement of this Act. 22
17 Amendment of Rail Safety Act 2008 23
(1) Section 138 (1) of the Rail Safety Act 2008 (the Act) continues to 24
apply as it was in force before the commencement of this Act to 25
and in respect of offences committed before the commencement 26
of this Act. 27
(2) Section 138 (2) of the Act continues to apply as it was in force 28
before the commencement of this Act to and in respect of 29
improvement or prohibition notices issued before the 30
commencement of this Act. 31
(3) Except as otherwise provided by this clause, an amendment made 32
to the Act by the amending Act does not apply to an act or 33
omission that occurs before the commencement of the 34
amendment. 35
Page 9
Work Health and Safety Legislation Amendment Bill 2011
Schedule 1 Amendment of Work Health and Safety Act 2011 No 10
18 Amendment of Road Transport (General) Act 2005 1
For the purposes of section 244A of the Road Transport 2
(General) Act 2005, a person who commits an act or omission 3
that constitutes an offence under an applicable road law and 4
under the OHS Act is not liable to be punished twice in relation 5
to that offence if it was committed before the commencement of 6
this Act. 7
19 Amendment of Rural Workers Accommodation Act 1969 8
For the purposes of section 20 of the Rural Workers 9
Accommodation Act 1969 (the Act), a person who commits an act 10
or omission that constitutes an offence under the Act (or any 11
regulations made under the Act) and under the OHS Act is not 12
liable to be punished twice in relation to that offence if it was 13
committed before the commencement of this Act. 14
20 Amendment of Workplace Injury Management and Workers 15
Compensation Act 1998 16
(1) A reference in section 245A (Evidence--criminal proceedings 17
under WHS legislation) of the Workplace Injury Management 18
and Workers Compensation Act 1998 to work health and safety 19
legislation includes (in relation to an offence committed before 20
the commencement of this Act) a reference to occupational health 21
and safety legislation within the meaning of that Act as in force 22
before that commencement. 23
(2) For the purposes of the operation of section 254 of the Workplace 24
Injury Management and Workers Compensation Act 1998 after 25
the commencement of this Act, an injury reported before that 26
commencement by or on behalf of an employer to an inspector 27
under the OHS Act is taken to have been reported to an inspector 28
under this Act. 29
(3) The Workers Compensation and Work Health and Safety 30
Council of New South Wales is a continuation of the Workers 31
Compensation and Workplace Occupational Health and Safety 32
Council of New South Wales as constituted under the Workplace 33
Injury Management and Workers Compensation Act 1998 before 34
the commencement of this Act. 35
Page 10
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Mine Health and Safety Act 2004 No 74 Schedule 2
Schedule 2 Amendment of Mine Health and Safety 1
Act 2004 No 74 2
[1] Section 3 Definitions 3
Omit the definition of Board from section 3 (1). Insert instead: 4
Board means the Mining Competence Board constituted by 5
section 112. 6
[2] Section 3 (1), definition of "coal operation" 7
Insert in alphabetical order: 8
coal operation has the same meaning as in the Coal Mine Health 9
and Safety Act 2002. 10
[3] Section 9 Act does not apply to coal operations 11
Insert ", except as provided by Part 9 (Competence standards)" after "applies". 12
[4] Part 9, Division 2, heading 13
Omit the heading. Insert instead: 14
Division 2 Mining Competence Board 15
[5] Section 112 Mining Competence Board 16
Omit section 112 (1). Insert instead: 17
(1) There is constituted by this Act a body corporate with the 18
corporate name of the Mining Competence Board. 19
[6] Section 114 Membership of Board 20
Omit section 114 (1). Insert instead: 21
(1) The Board is made up of the following persons appointed by the 22
Minister: 23
(a) the Chairperson of the Board (who is not to be an officer 24
of the Department), and 25
(b) such number of persons as the Minister determines, 26
selected in accordance with the regulations, to represent 27
the interests of employers in the mining and coal mining 28
industries, and 29
(c) such number of persons as the Minister determines, 30
selected in accordance with the regulations, to represent 31
the interests of employees in the mining and coal mining 32
industries, and 33
Page 11
Work Health and Safety Legislation Amendment Bill 2011
Schedule 2 Amendment of Mine Health and Safety Act 2004 No 74
(d) between 2 and 4 persons who have expertise in the 1
development and assessment of competence of persons 2
performing functions at mines or coal operations, and 3
(e) 2 officers of the Department. 4
[7] Section 116 Functions of Board 5
Insert "or the Coal Mine Health and Safety Act 2002" after "this Act" in 6
section 116 (1). 7
[8] Section 116 8
Insert "or coal operations" after "mines" wherever occurring. 9
[9] Section 120 Power to make orders 10
Omit "The Minister may make orders" from section 120 (1). 11
Insert instead "The Minister or the Board may make orders". 12
[10] Section 120 (1) (f) 13
Omit "rules". Insert instead "orders". 14
[11] Section 120 (1) (h) 15
Omit the paragraph. Insert instead: 16
(h) the declaration by the Minister that a person's competence 17
is not recognised (but this is not a matter for which an order 18
of the Board can make provision), 19
[12] Section 120 (1A) 20
Insert after section 120 (1): 21
(1A) An order made by the Board has no effect to the extent that it is 22
inconsistent with an order of the Minister under this section. 23
[13] Section 120 (2) 24
Insert "by the Minister" after "orders". 25
[14] Schedule 5 Savings, transitional and other provisions 26
Insert at the end of clause 1 (1): 27
Work Health and Safety Legislation Amendment Act 2011 28
Page 12
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Mine Health and Safety Act 2004 No 74 Schedule 2
[15] Schedule 5 1
Insert at the end of the Schedule: 2
Part 3 Provisions consequent on the enactment 3
of Work Health and Safety Legislation 4
Amendment Act 2011 5
19 Definitions 6
In this Part: 7
amending Act means the Work Health and Safety Legislation 8
Amendment Act 2011. 9
former Board means the Metalliferous Mines and Extractive 10
Industries Competence Board constituted by section 112 11
immediately before the new Board commencement. 12
new Board means the Mining Competence Board constituted by 13
section 112 after the new Board commencement. 14
new Board commencement means the commencement of the 15
amendment made by the amending Act to section 112. 16
20 Dissolution of former Board 17
(1) On the new Board commencement, the former Board is 18
dissolved. 19
(2) On the dissolution of the former Board, a person who held office 20
as a member of the former Board immediately before its 21
dissolution ceases to hold office as such but is eligible (if 22
otherwise qualified) to be appointed as a member of the new 23
Board. 24
(3) A person who ceases to hold office as a member of the former 25
Board because of the operation of this clause is not entitled to be 26
paid any remuneration or compensation because of ceasing to 27
hold that office. 28
21 Appointment of new Board 29
For the purpose of facilitating the appointment of members of the 30
new Board to take effect on the new Board commencement, 31
action may be taken under section 114 as amended by the 32
amending Act after the date of assent to that Act and before the 33
new Board commencement. 34
Page 13
Work Health and Safety Legislation Amendment Bill 2011
Schedule 2 Amendment of Mine Health and Safety Act 2004 No 74
22 Actions of former Board 1
(1) Anything done by the former Board before the new Board 2
commencement that has any force or effect immediately before 3
the new Board commencement is taken to have been done by the 4
new Board. 5
(2) This clause extends to but is not limited to the following things 6
done by the former Board: 7
(a) an assessment of competence, 8
(b) the conduct of an examination, 9
(c) the grant, suspension or cancellation of, or the imposition 10
of conditions on, a certificate of competence or exemption, 11
(d) any approval given or appointment or recommendation 12
made by the former Board. 13
23 Delegations to former Board 14
Any delegation to the former Board by the Minister that is in 15
force under section 182 immediately before the new Board 16
commencement is taken to be a delegation to the new Board. 17
24 Annual report of former Board 18
The first annual report of the new Board under section 117 after 19
the new Board commencement is to include a report of the 20
activities of the former Board during the preceding year. 21
25 Protection from liability 22
A reference in section 189 to a member of the Board includes a 23
reference to a member of the former Board in relation to a matter 24
or thing done or omitted to be done before the new Board 25
commencement. 26
Page 14
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Coal Mine Health and Safety Act 2002 No 129 Schedule 3
Schedule 3 Amendment of Coal Mine Health and 1
Safety Act 2002 No 129 2
[1] Section 3 Definitions 3
Omit the definition of Board. Insert instead: 4
Board means the Mining Competence Board constituted by 5
section 112 of the Mine Health and Safety Act 2004. 6
[2] Part 9, Division 2 Coal Competence Board 7
Omit the Division. 8
[3] Section 135 Annual report 9
Omit the section. 10
[4] Schedule 3 Savings, transitional and other provisions 11
Insert at the end of clause 1 (1): 12
Work Health and Safety Legislation Amendment Act 2011, but 13
only to the extent that it amends this Act 14
[5] Schedule 3 15
Insert at the end of the Schedule: 16
Part 4 Provisions consequent on the enactment 17
of Work Health and Safety Legislation 18
Amendment Act 2011 19
28 Definitions 20
In this Part: 21
amending Act means the Work Health and Safety Legislation 22
Amendment Act 2011. 23
former Board means the Coal Competence Board constituted by 24
section 130 immediately before the repeal of that section by the 25
amending Act. 26
new Board means the Mining Competence Board constituted by 27
section 112 of the Mine Health and Safety Act 2004 after the 28
commencement of the amendment made by the amending Act to 29
section 112 of the Mine Health and Safety Act 2004. 30
Page 15
Work Health and Safety Legislation Amendment Bill 2011
Schedule 3 Amendment of Coal Mine Health and Safety Act 2002 No 129
29 Dissolution of former Board 1
(1) The former Board is dissolved on the repeal of section 130 by the 2
amending Act. 3
(2) On the dissolution of the former Board, a person who held office 4
as a member of the former Board immediately before its 5
dissolution ceases to hold office as such but is eligible (if 6
otherwise qualified) to be appointed as a member of the new 7
Board. 8
(3) A person who ceases to hold office as a member of the former 9
Board because of the operation of this clause is not entitled to be 10
paid any remuneration or compensation because of ceasing to 11
hold that office. 12
30 Actions of former Board 13
(1) Anything done by the former Board before its dissolution that has 14
any force or effect immediately before the former Board's 15
dissolution is taken to have been done by the new Board. 16
(2) This clause extends to but is not limited to the following things 17
done by the former Board: 18
(a) an assessment of competence, 19
(b) the conduct of an examination, 20
(c) the grant, suspension or cancellation of, or the imposition 21
of conditions on, a certificate of competence or exemption, 22
(d) any approval given or appointment or recommendation 23
made by the former Board. 24
31 Delegations to former Board 25
Any delegation to the former Board by the Minister that is in 26
force under section 212 immediately before the dissolution of the 27
former Board is taken to be a delegation to the new Board. 28
32 Annual report of former Board 29
The first annual report of the new Board under section 117 of the 30
Mine Health and Safety Act 2004 after the dissolution of the 31
former Board is to include a report of the activities of the former 32
Board during the preceding year. 33
Page 16
Work Health and Safety Legislation Amendment Bill 2011
Amendment of Coal Mine Health and Safety Act 2002 No 129 Schedule 3
33 Protection from liability 1
A reference in section 220 to a member of the Board includes a 2
reference to a member of the former Board in relation to a matter 3
or thing done or omitted to be done before the dissolution of the 4
former Board. 5
Page 17
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
Schedule 4 Consequential amendment of Acts 1
4.1 Coal Industry Act 2001 No 107 2
[1] Section 10 General functions 3
Omit "occupational" from section 10 (1) (a). Insert instead "work". 4
[2] Section 17 Discretionary functions--non-rescue services for mines and 5
others 6
Omit "occupational" from section 17 (a). Insert instead "work". 7
[3] Section 24 Workers compensation funds 8
Omit "occupational" from section 24 (1) (c). Insert instead "work". 9
4.2 Coal Mine Health and Safety Act 2002 No 129 10
[1] Section 3 Definitions 11
Insert after paragraph (b) of the definition of previous offender: 12
(b1) the Work Health and Safety Act 2011, or 13
[2] Section 8 Application of Act 14
Omit "Occupational Health and Safety Act 2000" from section 8 (4). 15
Insert instead "Work Health and Safety Act 2011". 16
[3] Section 8A Act does not apply to certain mines or places (as inserted by 17
Schedule 1 [11] to the Coal Mine Health and Safety Amendment Act 2010) 18
Omit "Occupational Health and Safety Act 2000" from section 8A (2). 19
Insert instead "Work Health and Safety Act 2011". 20
[4] Section 8B Decisions on jurisdictional questions (as inserted by 21
Schedule 1 [11] to the Coal Mine Health and Safety Amendment Act 2010) 22
Omit "Occupational Health and Safety Act 2000" wherever occurring in 23
section 8B (3) and (7). 24
Insert instead "Work Health and Safety Act 2011". 25
[5] Section 10 Objects of Act 26
Omit "Occupational Health and Safety Act 2000" from section 10 (a). 27
Insert instead "Work Health and Safety Act 2011". 28
Page 18
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[6] Part 4 1
Omit the Part. Insert instead: 2
Part 4 Application of Work Health and Safety Act 3
2011 4
Note. The Work Health and Safety Act 2011 is the main Act that deals with the health, 5
safety and welfare of persons at work. This Part explains how this Act fits in with the 6
Work Health and Safety Act 2011. Basically, this Act creates additional protections, 7
rights and obligations necessary because of the special risks associated with coal 8
operations. This Part makes it clear that this Act provides for an increase in the 9
standard of protection of persons at work at coal operations and does not result in less 10
protection than the Work Health and Safety Act 2011 would otherwise provide. 11
11 Act to be read in conjunction with WHS Act 12
This Act is to be read in conjunction with the Work Health and 13
Safety Act 2011. 14
12 Act adds to protection provided by WHS Act 15
(1) If a provision of the Work Health and Safety Act 2011 or the 16
regulations made under that Act applies to coal operations, that 17
provision continues to apply, and must be observed, in addition 18
to this Act or the regulations made under this Act. 19
Note. For example, Part 2 of the Work Health and Safety Act 2011 20
imposes duties relating to health, safety and welfare at coal operations. 21
So does Part 5 of this Act. The provisions of this Act apply in addition to 22
those of the WHS Act and do not remove any WHS protections, rights or 23
obligations. 24
(2) Without limiting subsection (1) or any other provision of this Act, 25
the failure by an operator to comply with a provision of this Act 26
or the regulations does not affect any liability of any other person 27
under this Act or the regulations or under the Work Health and 28
Safety Act 2011 or the regulations under that Act. 29
13 WHS Act prevails 30
(1) The provisions of the Work Health and Safety Act 2011 and the 31
regulations under that Act prevail, to the extent of any 32
inconsistency, over the provisions of this Act and the regulations 33
under this Act. 34
Note. For example, if a provision of this Act deals with a certain matter 35
and a provision of the Work Health and Safety Act 2011 deals with the 36
same matter and it is not possible to comply with both provisions, then a 37
person must comply with the Work Health and Safety Act 2011 and not 38
Page 19
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
with this Act. If provisions of both Acts deal with the same matter but it is 1
possible to comply with both provisions, then a person must comply with 2
both Acts. 3
(2) This section is subject to section 122. 4
14 Compliance with this Act is no defence to prosecution under WHS 5
Act 6
Compliance with this Act or the regulations, or with any 7
requirement imposed under this Act or the regulations, is not in 8
itself a defence in any proceedings for an offence against the 9
Work Health and Safety Act 2011 or the regulations under that 10
Act. 11
15 Evidence of contraventions of this Act and WHS Act 12
Evidence of a relevant contravention of this Act or the 13
regulations is admissible in any proceedings for an offence 14
against the Work Health and Safety Act 2011 or the regulations 15
under that Act. 16
16 No double jeopardy 17
Where an act or omission constitutes an offence: 18
(a) under this Act or the regulations, and 19
(b) under the Work Health and Safety Act 2011 or the 20
regulations under that Act, 21
the offender is not liable to be punished twice in relation to the 22
offence. 23
[7] Part 5 Duties relating to health, safety and welfare at coal operations 24
Omit the note to Part 5. Insert instead: 25
Note. Part 2 of the Work Health and Safety Act 2011 imposes duties 26
relating to health, safety and welfare at work. Those duties apply to work 27
at coal operations. 28
This Part imposes extra duties. 29
[8] Part 5, Division 1, note 30
Omit the note. 31
[9] Part 5, Division 2, note 32
Omit the note. 33
[10] Section 42 Duties of operator regarding contractors 34
Omit "occupational" from section 42 (1) (b). Insert instead "work". 35
Page 20
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[11] Section 42 (3) (a) (ii), (3) (b) (ii), (3) (c) and (4) 1
Omit "Occupational Health and Safety Act 2000" wherever occurring. 2
Insert instead "Work Health and Safety Act 2011". 3
[12] Part 5, Division 3, note 4
Omit the note. 5
[13] Section 61 Unlawful dismissal or other victimisation of employee 6
Omit the note to the section. 7
[14] Part 5, Division 4, note 8
Omit the note. 9
[15] Section 63 Duties of manager of mining engineering 10
Omit "Occupational Health and Safety Act 2000" from section 63 (3). 11
Insert instead "Work Health and Safety Act 2011". 12
[16] Section 64 Duties of manager of electrical engineering 13
Omit "Occupational Health and Safety Act 2000" from section 64 (3). 14
Insert instead "Work Health and Safety Act 2011". 15
[17] Section 65 Duties of manager of mechanical engineering 16
Omit "Occupational Health and Safety Act 2000" from section 65 (3). 17
Insert instead "Work Health and Safety Act 2011". 18
[18] Section 67 Those in management positions must inform operator of 19
non-compliance 20
Omit "Occupational Health and Safety Act 2000" wherever occurring. 21
Insert instead "Work Health and Safety Act 2011". 22
[19] Section 70 Supervisor must inform operator of non-compliance 23
Omit "Occupational Health and Safety Act 2000" wherever occurring. 24
Insert instead "Work Health and Safety Act 2011". 25
[20] Part 5, Division 6, note 26
Omit the note. 27
Page 21
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[21] Section 75 Contractor must prepare and implement WHS management 1
plan 2
Omit "occupational" wherever occurring. Insert instead "work". 3
[22] Section 76 Contractor's duties regarding subcontractors 4
Omit "occupational" wherever occurring in section 76 (1) (b), (3) and (4). 5
Insert instead "work". 6
[23] Section 118 Minister to make stop work orders 7
Omit "Occupational Health and Safety Act 2000" from section 118 (1) (a). 8
Insert instead "Work Health and Safety Act 2011". 9
[24] Section 122 Stop work order prevails over other instruments 10
Omit "An investigation notice" from section 122 (1). 11
Insert instead "A non-disturbance notice". 12
[25] Section 122 (1) 13
Omit "Occupational Health and Safety Act 2000". 14
Insert instead "Work Health and Safety Act 2011". 15
[26] Section 145 Appointment of government officials 16
Omit "Occupational Health and Safety Act 2000" from section 145 (2) (as 17
substituted by Schedule 1 [19] to the Coal Mine Health and Safety Amendment 18
Act 2010). 19
Insert instead "Work Health and Safety Act 2011". 20
[27] Section 145 (3) 21
Omit "section 48 of the Occupational Health and Safety Act 2000". 22
Insert instead "section 157 of the Work Health and Safety Act 2011". 23
[28] Part 10 Oversight of coal operations 24
Omit the note to Subdivision 3 of Division 2. Insert instead: 25
Note. Section 156A of the Work Health and Safety Act 2011 provides 26
that a person appointed as a government official under this Act is 27
deemed to have been appointed as an inspector for the purposes of the 28
WHS Act and has the powers of an inspector under that Act in relation 29
to coal workplaces. 30
Page 22
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[29] Section 155 Power of entry at any time 1
Omit "Despite Part 5 of the Occupational Health and Safety Act 2000". 2
Insert instead "Despite Part 9 of the Work Health and Safety Act 2011". 3
[30] Section 164 Functions of site check inspectors 4
Omit "Occupational Health and Safety Act 2000" from section 164 (e). 5
Insert instead "Work Health and Safety Act 2011". 6
[31] Section 165 Training of site check inspectors 7
Omit "occupational" from section 165 (1). Insert instead "work". 8
[32] Section 167 Duties of operators in relation to site check inspectors 9
Omit "OHS committee (established under the Occupational Health and Safety 10
Act 2000)" from section 167 (c). 11
Insert instead "health and safety committee (established under the Work 12
Health and Safety Act 2011)". 13
[33] Section 168 Duties of contractors in relation to site check inspectors 14
Omit "OHS committee (established under the Occupational Health and Safety 15
Act 2000)" from section 168 (c). 16
Insert instead "health and safety committee (established under the Work 17
Health and Safety Act 2011)". 18
[34] Part 10, Division 3, Subdivision 3, note 19
Omit the note. 20
[35] Section 173 Appointment of industry check inspectors 21
Omit section 173 (1) (b). Insert instead: 22
(b) is an authorised industrial officer within the meaning of 23
Part 7 (Entry and inspection by officers of industrial 24
organisations) of Chapter 5 of the Industrial Relations Act 25
1996, and 26
[36] Section 175 Powers of industry check inspectors to suspend operations 27
Omit "Occupational Health and Safety Act 2000" from section 175 (1) (a). 28
Insert instead "Work Health and Safety Act 2011". 29
Page 23
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[37] Section 179 Inspections by check inspectors 1
Omit "Occupational Health and Safety Act 2000" from section 179 (b). 2
Insert instead "Work Health and Safety Act 2011". 3
[38] Section 185 4
Omit the section. Insert instead: 5
185 Purpose of industry codes of practice 6
The purpose of a coal mining industry code of practice is to 7
provide practical guidance to operators and others who have 8
duties under Part 5 of this Act or Part 2 of the Work Health and 9
Safety Act 2011 in relation to work health, safety and welfare at 10
coal operations. 11
[39] Section 191 Use of codes 12
Omit "Occupational Health and Safety Act 2000" from section 191 (1). 13
Insert instead "Work Health and Safety Act 2011". 14
[40] Section 202 Regulations relating to consultation 15
Omit "OHS committee for the coal operation (established under the 16
Occupational Health and Safety Act 2000)" from section 202 (1). 17
Insert instead "health and safety committee for the coal operation (established 18
under the Work Health and Safety Act 2011)". 19
[41] Part 13 Miscellaneous 20
Omit the note to Division 1. Insert instead: 21
Note. Section 229A of the Work Health and Safety Act 2011 provides for 22
offences under this Act and the regulations to be prosecuted under that 23
Act. 24
[42] Section 220 Protection from liability 25
Omit "Occupational Health and Safety Act 2000" from section 220 (1). 26
Insert instead "Work Health and Safety Act 2011". 27
4.3 Coal Mine Health and Safety Amendment Act 2010 No 23 28
[1] Schedule 1 Amendment of Coal Mine Health and Safety Act 2002 No 129 29
Omit "Occupational Health and Safety Act 2000" from proposed 30
section 8A (2) in Schedule 1 [11]. 31
Insert instead "Work Health and Safety Act 2011". 32
Page 24
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[2] Schedule 1 [11] 1
Omit "Occupational Health and Safety Act 2000" wherever occurring in 2
proposed section 8B (3) and (7). 3
Insert instead "Work Health and Safety Act 2011". 4
[3] Schedule 1 [19] 5
Omit "Occupational Health and Safety Act 2000" from proposed 6
section 145 (2). 7
Insert instead "Work Health and Safety Act 2011". 8
[4] Schedule 3 Amendment of other Acts and instruments 9
Omit "Occupational Health and Safety Act 2000" wherever occurring in 10
proposed section 8 (3) and (7) in Schedule 3.6 [1]. 11
Insert instead "Work Health and Safety Act 2011". 12
[5] Schedule 3.6 [2] 13
Omit "Occupational Health and Safety Act 2000" from proposed 14
section 127 (2). 15
Insert instead "Work Health and Safety Act 2011". 16
4.4 Crimes (Sentencing Procedure) Act 1999 No 92 17
[1] Section 27 Application of Division 18
Omit "this Division applies only if the offence is being dealt with on 19
indictment" from section 27 (2). 20
Insert instead "this Division applies only if the offence is being dealt with on 21
indictment in the Supreme Court or on indictment or summarily in the District 22
Court". 23
[2] Section 27 (2A) (a) 24
Omit "Division 1 of Part 2 of the Occupational Health and Safety Act 2000". 25
Insert instead "Division 5 of Part 2 of the Work Health and Safety Act 2011". 26
4.5 Criminal Procedure Act 1986 No 209 27
[1] Section 170 Application 28
Insert after section 170 (3) (c): 29
(c1) proceedings before the District Court, 30
Page 25
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[2] Section 215 When costs may be awarded to prosecutor 1
Omit section 215 (1B). Instead instead: 2
(1B) Subsection (1A) does not apply in relation to proceedings for an 3
offence against the Work Health and Safety Act 2011 or the 4
regulations under that Act. 5
[3] Section 257D Limit on award of professional costs against a prosecutor 6
acting in a public capacity 7
Omit section 257D (2) (b). Insert instead: 8
(b) does not apply in relation to proceedings for an offence 9
against the Work Health and Safety Act 2011 or the 10
regulations under that Act. 11
4.6 Dangerous Goods (Road and Rail Transport) Act 2008 No 95 12
Section 22 13
Omit the section. Insert instead: 14
22 General powers of authorised officers appointed by WorkCover: 15
application of Part 9 of Work Health and Safety Act 2011 16
(1) An authorised officer appointed by WorkCover has and may 17
exercise the functions of an inspector under Part 9 of the Work 18
Health and Safety Act 2011 (the WHS Act) for the following 19
purposes: 20
(a) for determining whether there has been compliance with or 21
a contravention of this Act and the regulations, 22
(b) for obtaining information or records for purposes 23
connected with the administration of this Act and the 24
regulations, 25
(c) generally for administering this Act and the regulations. 26
(2) The provisions of Part 9 of the WHS Act apply to and in respect 27
of this Act as if those provisions were part of this Act, subject to 28
the following modifications: 29
(a) references in those provisions to an inspector were 30
references to an authorised officer appointed by 31
WorkCover as a Competent Authority under this Act, 32
(b) references in those provisions to "this Act" were 33
references to this Act, 34
(c) references in those provisions to the regulator were 35
references to WorkCover as a Competent Authority. 36
Page 26
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
(3) For the avoidance of doubt, a prosecution of a person for an 1
offence against a provision of Part 9 of the WHS Act (as applying 2
under this section) is to be taken as if the offence were an offence 3
against this Act. 4
(4) The functions that an authorised officer has under Part 9 of the 5
WHS Act are, for the purposes of any provision of this Act, taken 6
to be functions under this Act. 7
(5) If an authorised officer has functions in relation to a matter under 8
both Part 9 of the WHS Act (as applying under this section) and 9
under any other provision of this Act, the fact that there is a 10
restriction on the exercise of a function under this Act does not of 11
itself operate to restrict the exercise by an authorised officer of 12
any similar or the same function under Part 9 of the WHS Act. 13
4.7 Electricity (Consumer Safety) Act 2004 No 4 14
Section 38 Arrangements with other public authorities regarding 15
investigable electrical incidents 16
Omit "Occupational Health and Safety Act 2000" from section 38 (1) (a). 17
Insert instead "Work Health and Safety Act 2011". 18
4.8 Explosives Act 2003 No 39 19
[1] Section 27 20
Omit the section. Insert instead: 21
27 Extension of certain provisions of Work Health and Safety Act 22
2011 relating to inspectors and the enforcement of this Act 23
(1) Part 9 (Securing compliance), other than section 187, of the Work 24
Health and Safety Act 2011 applies to inspectors (within the 25
meaning of this Act) for the purposes of the administration of this 26
Act and the regulations. 27
(2) For the purpose of the application of those provisions: 28
(a) a reference in the Work Health and Safety Act 2011 to "this 29
Act or the regulations" is taken to be a reference to this Act 30
or the regulations under this Act, and 31
(b) a reference in the Work Health and Safety Act 2011 to a 32
workplace is taken to be a reference to premises in which 33
the handling of explosives, explosive precursors or 34
dangerous goods to which section 31 of this Act applies is 35
occurring, and 36
Page 27
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
(c) a reference in the Work Health and Safety Act 2011 to an 1
inspector (within the meaning of that Act) is taken to be a 2
reference to an inspector (within the meaning of this Act). 3
[2] Section 31 Regulations relating to dangerous goods 4
Omit "section 135A of the Occupational Health and Safety Act 2000" from 5
section 31 (1). 6
Insert instead "Schedule 1 to the Work Health and Safety Act 2011". 7
[3] Section 31 (1) 8
Omit "that section". Insert instead "that Schedule". 9
4.9 Greyhound Racing Act 2009 No 19 10
[1] Section 20 Suspension or cancellation of registration of greyhound 11
racing clubs and trial tracks on commercial grounds 12
Omit "occupational" from section 20 (3). Insert instead "work". 13
[2] Section 21 Disciplinary and work health and safety action may be taken 14
by GRNSW 15
Omit "occupational" from section 21 (3). Insert instead "work". 16
4.10 Harness Racing Act 2009 No 20 17
[1] Section 20 Suspension or cancellation of registration of harness racing 18
clubs on commercial grounds 19
Omit "occupational" from section 20 (3). Insert instead "work". 20
[2] Section 21 Disciplinary and work health and safety action may be taken 21
by HRNSW 22
Omit "occupational" from section 21 (3). Insert instead "work". 23
4.11 Health Services Act 1997 No 154 24
Section 116E Obligations of declared affiliated health organisations 25
under certain legislation 26
Omit section 116E (1). Insert instead: 27
(1) For the purposes of the Work Health and Safety Act 2011, a 28
declared affiliated health organisation has, in respect of the staff 29
employed in the NSW Health Service to enable the organisation 30
to exercise its functions, the functions and liabilities of the person 31
conducting the business or undertaking conducted by a 32
Page 28
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
recognised establishment or recognised service of the 1
organisation. 2
4.12 Homebush Motor Racing (Sydney 400) Act 2008 No 106 3
Section 17 Authorisation to carry out works 4
Omit "Occupational Health and Safety Act 2000" from section 17 (8) (a). 5
Insert instead "Work Health and Safety Act 2011". 6
4.13 Industrial Relations Act 1996 No 17 7
[1] Section 70 Transfer to a safe job 8
Omit "Occupational Health and Safety Act 2000" from section 70 (1). 9
Insert instead "Work Health and Safety Act 2011". 10
[2] Section 185 Rules of Commission 11
Insert after section 185 (2) (d): 12
(d1) authorising any function of the Commission under the 13
Work Health and Safety Act 2011 to be exercised by the 14
Industrial Registrar, or 15
[3] Section 197 Appeals from Local Court 16
Insert at the end of section 197 (1) (c): 17
, or 18
(d) a civil penalty imposed under Division 7 of Part 13 of the 19
Work Health and Safety Act 2011 by the Local Court for a 20
contravention of a WHS civil penalty provision or the 21
dismissal by the Local Court of proceedings for such a 22
civil penalty. 23
[4] Section 197A Appeals against acquittals in proceedings for offences 24
against occupational health and safety legislation 25
Omit the section. 26
[5] Section 210 Freedom from victimisation 27
Omit section 210 (1) (j). Insert instead: 28
(j) makes a complaint about a workplace matter that the 29
person considers is not safe or a risk to health, or exercises 30
functions under Part 5 (Consultation, representation and 31
participation) of the Work Health and Safety Act 2011, or 32
Page 29
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[6] Section 382 Jurisdiction of Chief and other Industrial Magistrates 1
Omit "Occupational Health and Safety Act 2000" from section 382 (1). 2
Insert instead "Work Health and Safety Act 2011". 3
[7] Section 383A Recovery of amount ordered to be paid by Industrial 4
Magistrate under other legislation 5
Omit section 383A (a). 6
[8] Section 396 Penalty notices 7
Omit "Occupational Health and Safety Act 2000" from section 396 (9). 8
Insert instead "Work Health and Safety Act 2011". 9
4.14 Industrial Relations Amendment (Jurisdiction of Industrial 10
Relations Commission) Act 2009 No 32 11
[1] Schedule 1 Amendment of Industrial Relations Act 1996 No 17 12
Omit Schedule 1 [5]. 13
[2] Schedule 2 Amendment of other legislation 14
Omit Schedule 2.15. 15
4.15 Law Enforcement (Powers and Responsibilities) Act 2002 16
No 103 17
Schedule 2 Search warrants under other Acts 18
Omit "Occupational Health and Safety Act 2000, section 58". 19
Insert in alphabetical order: 20
Work Health and Safety Act 2011, section 167 21
4.16 Licensing and Registration (Uniform Procedures) Act 2002 22
No 28 23
Schedules 1, 2 and 3A 24
Omit the matter relating to the Occupational Health and Safety Regulation 25
2001 wherever occurring. 26
Page 30
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
4.17 Local Government Act 1993 No 30 1
Dictionary 2
Omit the definition of amusement device. Insert instead: 3
amusement device means an amusement device that is high risk plant 4
within the meaning of clause 6 of Schedule 1 to the Work Health and 5
Safety Act 2011, and includes any other device that is declared by the 6
regulations to be an amusement device for the purposes of this Act. 7
4.18 Mine Health and Safety Act 2004 No 74 8
[1] Section 3 Definitions 9
Omit the definition of authorised representative from section 3 (1). 10
Insert instead: 11
authorised representative, in relation to an industrial organisation of 12
employees, means a person who is an authorised industrial officer 13
within the meaning of Part 7 (Entry and inspection by officers of 14
industrial organisations) of Chapter 5 of the Industrial Relations Act 15
1996 in relation to that industrial organisation of employees. 16
[2] Section 3 (1), definition of "previous offender" 17
Insert after paragraph (d) of the definition: 18
(d1) the Work Health and Safety Act 2011, or 19
[3] Section 7 Act does not apply to certain mines or places 20
Omit "Occupational Health and Safety Act 2000" from section 7 (2). 21
Insert instead "Work Health and Safety Act 2011". 22
[4] Section 8 Decision on question of whether this Act applies 23
Omit "Occupational Health and Safety Act 2000" wherever occurring. 24
Insert instead "Work Health and Safety Act 2011". 25
[5] Section 14 Objects of Act 26
Omit "Occupational Health and Safety Act 2000" from section 14 (a). 27
Insert instead "Work Health and Safety Act 2011". 28
Page 31
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[6] Part 4 1
Omit the Part. Insert instead: 2
Part 4 Application of Work Health and Safety Act 3
2011 4
Note. The Work Health and Safety Act 2011 is the main Act that deals with the health, 5
safety and welfare of persons at work. This Part explains how this Act fits in with the 6
Work Health and Safety Act 2011. Basically, this Act creates additional protections, 7
rights and obligations necessary because of the special risks associated with mines. 8
This Part makes it clear that this Act provides for an increase in the standard of 9
protection of persons at work at mines and does not result in less protection than the 10
Work Health and Safety Act 2011 would otherwise provide. 11
15 Act to be read in conjunction with WHS Act 12
This Act is to be read in conjunction with the Work Health and 13
Safety Act 2011. 14
16 Act adds to protection provided by WHS Act 15
(1) If a provision of the Work Health and Safety Act 2011 or the 16
regulations under that Act applies to mines or other places to 17
which this Act applies, that provision continues to apply, and 18
must be observed, in addition to this Act or the regulations under 19
this Act. 20
Note. For example, Part 2 of the Work Health and Safety Act 2011 21
imposes duties relating to health, safety and welfare at mines. So does 22
Part 5 of this Act. The provisions of this Act apply in addition to those of 23
the WHS Act and do not remove any WHS protections, rights or 24
obligations. 25
(2) Without limiting subsection (1) or any other provision of this Act, 26
the failure by an operator to comply with a provision of this Act 27
or the regulations does not affect any liability of any other person 28
under this Act or the regulations or under the Work Health and 29
Safety Act 2011 or the regulations under that Act. 30
17 WHS Act prevails 31
(1) The provisions of the Work Health and Safety Act 2011 and the 32
regulations under that Act prevail, to the extent of any 33
inconsistency, over the provisions of this Act and the regulations 34
under this Act. 35
Note. For example, if a provision of this Act deals with a certain matter 36
and a provision of the Work Health and Safety Act 2011 deals with the 37
same matter and it is not possible to comply with both provisions, then a 38
person must comply with the Work Health and Safety Act 2011 and not 39
Page 32
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
with this Act. If provisions of both Acts deal with the same matter but it is 1
possible to comply with both provisions, then a person must comply with 2
both Acts. 3
(2) This section is subject to section 104. 4
18 Compliance with this Act is no defence to prosecution under WHS 5
Act 6
Compliance with this Act or the regulations, or with any 7
requirement imposed under this Act or the regulations, is not in 8
itself a defence in any proceedings for an offence against the 9
Work Health and Safety Act 2011 or the regulations under that 10
Act. 11
19 Evidence of contraventions of this Act and WHS Act 12
Evidence of a relevant contravention of this Act or the 13
regulations is admissible in any proceedings for an offence 14
against the Work Health and Safety Act 2011 or the regulations 15
under that Act. 16
20 No double jeopardy 17
Where an act or omission constitutes an offence: 18
(a) under this Act or the regulations, and 19
(b) under the Work Health and Safety Act 2011 or the 20
regulations under that Act, 21
the offender is not liable to be punished twice in relation to the 22
offence. 23
[7] Part 5 Duties relating to health, safety and welfare at mines 24
Omit the note to Part 5. Insert instead: 25
Note. Part 2 of the Work Health and Safety Act 2011 imposes duties 26
relating to health, safety and welfare at work. Those duties apply to work 27
at mines. 28
This Part imposes extra duties. 29
[8] Part 5, Division 1, note 30
Omit the note. 31
[9] Part 5, Division 2, note 32
Omit the note. 33
Page 33
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[10] Section 40 Duties of operator regarding contractors 1
Omit "Occupational Health and Safety Act 2000" wherever occurring in 2
section 40 (1) (a)(c) and (2). 3
Insert instead "Work Health and Safety Act 2011". 4
[11] Section 40 (1) (e) 5
Omit "occupational". Insert instead "work". 6
[12] Part 5, Division 3, note 7
Omit the note. 8
[13] Section 52 Unlawful dismissal or other victimisation of employee 9
Omit the note to the section. 10
[14] Part 5, Division 4, note 11
Omit the note. 12
[15] Section 55 Persons in management positions must inform operator of 13
non-compliance 14
Omit "Occupational Health and Safety Act 2000" wherever occurring. 15
Insert instead "Work Health and Safety Act 2011". 16
[16] Section 59 Supervisor must inform operator of non-compliance 17
Omit "Occupational Health and Safety Act 2000" wherever occurring. 18
Insert instead "Work Health and Safety Act 2011". 19
[17] Part 5, Division 6, note 20
Omit the note. 21
[18] Section 63 Contractor's safety management plan 22
Omit "occupational" from section 63 (2). Insert instead "work". 23
[19] Section 100 Minister may make stop work order 24
Omit "Occupational Health and Safety Act 2000" from section 100 (1) (b). 25
Insert instead "Work Health and Safety Act 2011". 26
[20] Section 104 Stop work order prevails over other instruments 27
Omit "An investigation notice" from section 104 (1). 28
Insert instead "A non-disturbance notice". 29
Page 34
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[21] Section 104 (1) 1
Omit "Occupational Health and Safety Act 2000". 2
Insert instead "Work Health and Safety Act 2011". 3
[22] Section 127 Appointment of government officials 4
Omit "Occupational Health and Safety Act 2000" from section 127 (2) (as 5
substituted by Schedule 3.6 [2] to the Coal Mine Health and Safety 6
Amendment Act 2010). 7
Insert instead "Work Health and Safety Act 2011". 8
[23] Section 127 (3) 9
Omit "section 48 of the Occupational Health and Safety Act 2000". 10
Insert instead "section 157 of the Work Health and Safety Act 2011". 11
[24] Part 10 Oversight of mines 12
Omit the note to Subdivision 3 of Division 2. Insert instead: 13
Note. Section 156A of the Work Health and Safety Act 2011 provides 14
that a person appointed as a government official under this Act is 15
deemed to have been appointed as an inspector for the purposes of the 16
WHS Act and has the powers of an inspector under that Act in relation 17
to mining workplaces. 18
[25] Section 135 Power of entry at any time 19
Omit "Despite Part 5 of the Occupational Health and Safety Act 2000". 20
Insert instead "Despite Part 9 of the Work Health and Safety Act 2011". 21
[26] Section 136 Power to cross land 22
Omit "Occupational Health and Safety Act 2000" from section 136 (1). 23
Insert instead "Work Health and Safety Act 2011". 24
[27] Part 10, Division 3, notes 25
Omit the notes. 26
[28] Section 144 Functions of site check inspectors 27
Omit section 144 (d). 28
[29] Section 144 (e) and (f) 29
Omit "occupational" wherever occurring. Insert instead "work". 30
Page 35
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[30] Section 144 (k) 1
Omit "Occupational Health and Safety Act 2000". 2
Insert instead "Work Health and Safety Act 2011". 3
[31] Section 145 Training of site check inspectors 4
Omit "occupational" from section 145 (1). Insert instead "work". 5
[32] Section 146 Duties of operators in relation to site check inspectors 6
Omit "OHS committee under the Occupational Health and Safety Act 2000" 7
from section 146 (c). 8
Insert instead "health and safety committee (established under the Work 9
Health and Safety Act 2011)". 10
[33] Section 146, note 11
Omit the note. 12
[34] Section 147 Duties of contractors in relation to site check inspectors 13
Omit "OHS committee (established under the Occupational Health and Safety 14
Act 2000)" from section 147 (c). 15
Insert instead "health and safety committee (established under the Work 16
Health and Safety Act 2011)". 17
[35] Section 147, note 18
Omit the note. 19
[36] Section 150 Inspections by site check inspectors 20
Omit "Occupational Health and Safety Act 2000" from section 150 (b). 21
Insert instead "Work Health and Safety Act 2011". 22
[37] Section 153 Power to cross land 23
Omit "or the Occupational Health and Safety Act 2000" from section 153 (1). 24
[38] Section 158 25
Omit the section. Insert instead: 26
158 Purpose of industry codes of practice 27
The purpose of a mining industry code of practice is to provide 28
practical guidance to operators and others who have duties under 29
Part 5 of this Act or Part 2 of the Work Health and Safety Act 30
2011 in relation to work health, safety and welfare at mines. 31
Page 36
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
[39] Section 164 Use of codes 1
Omit "Occupational Health and Safety Act 2000" from section 164 (1). 2
Insert instead "Work Health and Safety Act 2011". 3
[40] Section 173 Regulations relating to consultation 4
Omit "OHS committee for the mine (established under the Occupational 5
Health and Safety Act 2000)" from section 173 (1). 6
Insert instead "health and safety committee for the mine (established under the 7
Work Health and Safety Act 2011)". 8
[41] Part 13 Miscellaneous 9
Omit the note to Division 1. Insert instead: 10
Note. Section 229A of the Work Health and Safety Act 2011 provides for 11
offences under this Act and the regulations to be prosecuted under that 12
Act. 13
[42] Section 189 Protection from liability 14
Omit "Occupational Health and Safety Act 2000" from section 189 (1). 15
Insert instead "Work Health and Safety Act 2011". 16
4.19 Mine Safety (Cost Recovery) Act 2005 No 116 17
Section 3 Definitions 18
Omit "Occupational Health and Safety Act 2000" from paragraph (b) of the 19
definition of mine safety legislation in section 3 (1). 20
Insert instead "Work Health and Safety Act 2011". 21
4.20 Mining Act 1992 No 29 22
[1] Section 341 Establishment of Mine Safety Advisory Council 23
Omit "occupational" wherever occurring in section 341 (2). 24
Insert instead "work". 25
[2] Section 365 Disclosure of information 26
Omit "occupational" from section 365 (1) (g). Insert instead "work". 27
[3] Section 378E Defences 28
Omit "Occupational Health and Safety Act 2000" from the definition of mine 29
safety legislation in section 378E (4). 30
Insert instead "Work Health and Safety Act 2011". 31
Page 37
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[4] Dictionary 1
Omit the definition of occupational health and safety legislation. 2
[5] Dictionary 3
Insert in alphabetical order: 4
work health and safety legislation means: 5
(a) the Occupational Health and Safety Act 1983 and the 6
regulations made under that Act, and 7
(b) the Occupational Health and Safety Act 2000 and the 8
regulations made under that Act, and 9
(c) the Work Health and Safety Act 2011 and the regulations 10
made under that Act, and 11
(d) the Coal Mines Regulation Act 1982 and the regulations 12
and any rules made under that Act, and 13
(e) the Coal Mine Health and Safety Act 2002 and the 14
regulations made under that Act, and 15
(f) the Mine Health and Safety Act 2004 and the regulations 16
made under that Act, and 17
(g) the Mines Inspection Act 1901 and the regulations and any 18
rules made under that Act. 19
4.21 Petroleum (Onshore) Act 1991 No 84 20
Section 128 Work practices 21
Omit "Occupational Health and Safety Act 2000" from section 128 (1). 22
Insert instead "Work Health and Safety Act 2011". 23
4.22 Radiation Control Act 1990 No 13 24
[1] Section 29 Radiation Advisory Council 25
Omit "occupational" from section 29 (2) (h). Insert instead "work". 26
[2] Section 38 Consultation and co-operation between Ministers 27
Omit "Occupational Health and Safety Act 2000" from section 38 (a) (iii). 28
Insert instead "Work Health and Safety Act 2011". 29
Page 38
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
4.23 Rail Safety Act 2008 No 97 1
[1] Section 4 Interpretation 2
Omit the definition of occupational health and safety legislation from 3
section 4 (1). 4
[2] Section 4 (1), definition of "work health and safety legislation" 5
Insert in alphabetical order: 6
work health and safety legislation means the following Acts and 7
any regulations made under those Acts: 8
(a) the Work Health and Safety Act 2011, 9
(b) the Coal Mine Health and Safety Act 2002, 10
(c) the Mine Health and Safety Act 2004. 11
[3] Sections 6 and 6A 12
Omit section 6. Insert instead: 13
6 Management of risks 14
A duty imposed on a person to ensure safety requires the person: 15
(a) to eliminate risks to safety, so far as is reasonably 16
practicable, and 17
(b) if it is not reasonably practicable to eliminate risks to 18
safety, to minimise those risks so far as is reasonably 19
practicable. 20
6A What is "reasonably practicable" in ensuring safety 21
In this Act, reasonably practicable, in relation to a duty to ensure 22
safety, means that which is, or was at a particular time, 23
reasonably able to be done in relation to ensuring safety, taking 24
into account and weighing up all relevant matters including: 25
(a) the likelihood of the risk concerned occurring, and 26
(b) the degree of harm that might result from the risk, and 27
(c) what the person concerned knows, or ought reasonably to 28
know, about: 29
(i) the risk, and 30
(ii) ways of eliminating or minimising the risk, and 31
(d) the availability and suitability of ways to eliminate or 32
minimise the risk, and 33
Page 39
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
(e) after assessing the extent of the risk and the available ways 1
of eliminating or minimising the risk, the cost associated 2
with available ways of eliminating or minimising the risk, 3
including whether the cost is grossly disproportionate to 4
the risk. 5
[4] Section 10 Duties of rail safety workers 6
Omit "occupational" wherever occurring in the note to the section. 7
Insert instead "work". 8
[5] Section 11 Onus of proving limits of what is reasonably practicable 9
under this Division 10
Omit the section. 11
[6] Section 12 Safety management system 12
Omit section 12 (3) (c). Insert instead: 13
(c) health and safety representatives under the Work Health 14
and Safety Act 2011 who represent persons with whom the 15
rail transport operator is required to consult under this 16
section, and 17
[7] Section 64 Confidential reporting of safety information by rail safety 18
workers 19
Omit "section 23 of the Occupational Health and Safety Act 2000" from the 20
note to the section. 21
Insert instead "section 104 of the Work Health and Safety Act 2011". 22
[8] Section 135 Multiple contraventions of general duties 23
Insert "or section 136" after "Part 2" in section 135 (1). 24
[9] Section 136 25
Omit the section. Insert instead: 26
136 Duty of officers 27
(1) If a corporation has a duty or obligation under Part 2, an officer 28
of the corporation must exercise due diligence to ensure that the 29
corporation complies with that duty or obligation. 30
Maximum penalty: the same maximum penalty that is applicable 31
to a failure by an individual to comply with the duty or obligation. 32
Page 40
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
(2) In this section, due diligence includes taking reasonable steps: 1
(a) to acquire and keep up-to-date knowledge of rail safety 2
matters, and 3
(b) to gain an understanding of the nature of the rail operations 4
of the corporation and generally of the risks associated 5
with those operations, and 6
(c) to ensure that the corporation has available for use, and 7
uses, appropriate resources and processes to eliminate or 8
minimise risks to safety from the rail operations of the 9
corporation, and 10
(d) to ensure that the corporation has appropriate processes for 11
receiving and considering information regarding incidents 12
and risks and responding in a timely way to that 13
information, and 14
(e) to ensure that the corporation has, and implements, 15
processes for complying with any duty or obligation of the 16
corporation under Part 2, and 17
(f) to verify the provision and use of the resources and 18
processes referred to in paragraphs (c)(e). 19
(3) A person may be proceeded against and convicted of an offence 20
under subsection (1) whether or not the corporation has been 21
proceeded against or has been convicted of an offence in relation 22
to the duty or obligation. 23
(4) An officer of a corporation who is a volunteer does not commit 24
an offence under this section. 25
(5) In this section: 26
corporation means any body corporate (including a body 27
corporate representing the Crown). 28
officer means an officer within the meaning of section 9 of the 29
Corporations Act 2001 of the Commonwealth, but does not 30
include a Minister of the Crown acting in that capacity, an elected 31
member of a local authority acting in that capacity or a partner in 32
a partnership. 33
volunteer means a person who is acting on a voluntary basis 34
(irrespective of whether the person receives out-of-pocket 35
expenses). 36
Page 41
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[10] Section 138 1
Omit the section. Insert instead: 2
138 Proceedings against the Crown and public authorities 3
(1) Divisions 5 and 6 of Part 13 of the Work Health and Safety Act 4
2011 apply to offences against this Act or the regulations, and to 5
proceedings for offences, in the same way as they apply to 6
offences against that Act or the regulations under that Act. 7
(2) Section 248 of the Work Health and Safety Act 2011 applies to 8
improvement or prohibition notices under this Act in the same 9
way as it applies to improvement or prohibition notices under that 10
Act. 11
[11] Section 175 Application of work health and safety legislation 12
Omit "occupational" wherever occurring. Insert instead "work". 13
4.24 Road Transport (General) Act 2005 No 11 14
Section 244A 15
Omit the section. Insert instead: 16
244A Application of work health and safety legislation 17
(1) The provisions of an applicable road law do not preclude, or 18
otherwise affect, the operation of the work health and safety 19
legislation. 20
(2) If the effect of complying with a requirement of an applicable 21
road law would be to cause a person to contravene a provision of 22
the work health and safety legislation, the person is not required 23
to comply with the requirement of the applicable road law. 24
(3) Where an act or omission constitutes an offence under an 25
applicable road law and: 26
(a) under the work health and safety legislation, or 27
(b) under the Dangerous Goods (Road and Rail Transport) 28
Act 2008, 29
the offender is not liable to be punished twice in relation to the 30
offence. 31
(4) In this section: 32
work health and safety legislation means the following Acts and 33
any regulations made under those Acts: 34
(a) the Work Health and Safety Act 2011, 35
Page 42
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
(b) the Coal Mine Health and Safety Act 2002, 1
(c) the Mine Health and Safety Act 2004. 2
4.25 Road Transport (Safety and Traffic Management) Act 1999 3
No 20 4
Section 59 Definitions 5
Omit "Occupational Health and Safety Act 2000" from the definition of 6
prescribed officer in section 59 (1). 7
Insert instead "Work Health and Safety Act 2011". 8
4.26 Rural Workers Accommodation Act 1969 No 34 9
[1] Part 4 10
Omit the Part. Insert instead: 11
Part 4 Application of Work Health and Safety Act 12
2011 13
16 Act adds to protection provided by WHS Act 14
If a provision of the Work Health and Safety Act 2011 or the 15
regulations under that Act applies to rural premises to which this 16
Act applies, that provision continues to apply, and must be 17
observed, in addition to this Act or the regulations under this Act. 18
17 WHS Act prevails 19
The provisions of the Work Health and Safety Act 2011 and the 20
regulations under that Act prevail, to the extent of any 21
inconsistency, over the provisions of this Act (other than 22
section 6) and the regulations under this Act. 23
18 Compliance with this Act is no defence to prosecution under WHS 24
Act 25
Compliance with this Act or the regulations, or with any 26
requirement imposed under this Act or the regulations, is not in 27
itself a defence in any proceedings for an offence against the 28
Work Health and Safety Act 2011 or the regulations under that 29
Act. 30
19 Relationship between duties under this Act and WHS Act 31
Evidence of a relevant contravention of this Act or the 32
regulations is admissible in any proceedings for an offence 33
Page 43
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
against the Work Health and Safety Act 2011 or the regulations 1
under that Act. 2
20 No double jeopardy 3
Where an act or omission constitutes an offence: 4
(a) under this Act or the regulations, and 5
(b) under the Work Health and Safety Act 2011 or the 6
regulations under that Act, 7
the offender is not liable to be punished twice in relation to the 8
offence. 9
[2] Section 21 10
Omit the section. Insert instead: 11
21 Application of Work Health and Safety Act 2011 12
(1) Parts 3, 9, 10 and 13, and section 271, of the Work Health and 13
Safety Act 2011 (the applied provisions) and any regulations 14
under those provisions extend to this Act and its enforcement. 15
(2) Accordingly, for that purpose a reference in the applied 16
provisions to that Act or those regulations includes a reference to 17
this Act and the regulations under this Act. 18
(3) For the purposes of this section: 19
(a) premises that are used for accommodation provided for a 20
rural worker for the purposes of this Act are taken to be a 21
workplace, and 22
(b) in relation to such premises, the reference to the person 23
with management or control of the place in section 170 of 24
the Work Health and Safety Act 2011 is taken to be a 25
reference to the rural worker resident in premises. 26
(4) The regulations may make other provisions modifying the 27
applied provisions for the purposes of this section. 28
4.27 Smoke-free Environment Act 2000 No 69 29
Section 12 Premises containing exempt areas to comply with certain 30
requirements 31
Omit "Occupational Health and Safety Act 2000" from section 12 (3). 32
Insert instead "Work Health and Safety Act 2011". 33
Page 44
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
4.28 Transport Administration Act 1988 No 109 1
[1] Section 88Y Obligations and rights under Work Health and Safety Act 2
2011 3
Omit "Occupational Health and Safety Act 2000" wherever occurring. 4
Insert instead "Work Health and Safety Act 2011". 5
[2] Section 88Y (3), definition of "employer liability legislation" 6
Omit paragraph (b) of the definition. 7
4.29 Uranium Mining and Nuclear Facilities (Prohibitions) Act 8
1986 No 194 9
Section 6 Act to prevail over other Acts and laws 10
Omit section 6 (2) (b). Insert instead: 11
(b) the Work Health and Safety Act 2011. 12
4.30 Workplace Injury Management and Workers Compensation 13
Act 1998 No 86 14
[1] Section 4 Definitions 15
Omit the definition of Council from section 4 (1). Insert instead: 16
Council means the Workers Compensation and Work Health and 17
Safety Council of New South Wales constituted under this Act. 18
[2] Section 4 (1), definition of "occupational health and safety legislation" 19
Omit the definition. 20
[3] Section 4 (1) 21
Insert in alphabetical order: 22
work health and safety legislation means: 23
(a) the Work Health and Safety Act 2011 and the instruments 24
under that Act, or 25
(b) any other Act or instrument (or part) prescribed by the 26
regulations under this Act. 27
[4] Section 22 General functions of Authority 28
Omit "occupational" wherever occurring. Insert instead "work". 29
Page 45
Work Health and Safety Legislation Amendment Bill 2011
Schedule 4 Consequential amendment of Acts
[5] Section 23 Specific functions 1
Omit "occupational" wherever occurring. Insert instead "work". 2
[6] Section 23 (1) (e) 3
Omit the paragraph. 4
[7] Section 23 (1) (i) 5
Omit the third dot point. 6
[8] Chapter 2, Part 4, heading 7
Omit the heading. Insert instead: 8
Part 4 Workers Compensation and Work Health 9
and Safety Council of New South Wales 10
[9] Section 28 Constitution of Council 11
Omit "Workplace Occupational". Insert instead "Work". 12
[10] Section 29 Membership and procedure of Council 13
Omit "occupational" from section 29 (1) (i). Insert instead "work". 14
[11] Section 30 Functions of Council 15
Omit "occupational" wherever occurring. Insert instead "work". 16
[12] Section 32 Industry Reference Groups 17
Omit "occupational" from section 32 (3) (b). Insert instead "work". 18
[13] Section 230A Premium Discount Schemes 19
Omit "occupational" wherever occurring. Insert instead "work". 20
[14] Section 245A Evidence--criminal proceedings under WHS legislation 21
Omit "occupational" wherever occurring. Insert instead "work". 22
[15] Section 254 Notice of injury must be given to employer 23
Omit "Occupational Health and Safety Act 2000" from section 254 (4) (b). 24
Insert instead "Work Health and Safety Act 2011". 25
Page 46
Work Health and Safety Legislation Amendment Bill 2011
Consequential amendment of Acts Schedule 4
4.31 Workplace Surveillance Act 2005 No 47 1
Section 8 Relationship with WHS Act 2
Omit "Occupational Health and Safety Act 2000". 3
Insert instead "Work Health and Safety Act 2011". 4
Page 47
[Index] [Search] [Download] [Related Items] [Help]