Fact sheet – Amendments to the NSW Work Health and Safety Act 2011 Resulting from the NSW Work Health and Safety Act Statutory Review – 2017

This fact sheet outlines the amendments to the NSW Work Health and Safety Act 2011 resulting from the NSW Work Health and Safety Act Statutory Review – 2017.

Recommendation from the NSW WHS Act statutory review

Summary of recommendation/amendment to the WHS Act

Rationale

Outcome

Recommendation one

The Government to consider amending the WHS Act to authorise extraterritorial application of the WHS Act, to the extent the State’s legislative power allows, including to obtain records and issue notices outside of NSW.

Section 155A

To ensure the NSW WHS Regulators are able to carry out its functions of monitoring and enforcing compliance with the WHS Act where cross border issues are involved, to avoid disputes and be more transparent – such as when investigating an incident.

When investigating an incident that has occurred in NSW, the NSW WHS Regulators’ ability to require a witness who has left the state to provide evidence, and the admissibility of records that are obtained from locations interstate, may be challenged due to the lack of an extraterritorial provision in the WHS Act.

Precedents for extraterritorial clauses already exist in other NSW legislation.

Enable WHS Regulators to carry out its functions where cross border issues are involved.

Recommendation two

That the term “facsimile” be removed from the WHS Act.

Section 38 and section 209

Remove the reference to “facsimile” throughout the WHS Act.

“Facsimiles” are a redundant form of technology and are captured under the terms “other electronic means” and “electronic transmission”.

As “facsimiles” are captured under the terms “other electronic means” and “electronic transmission” the use of these devices can continue, if required.

Recommendation three

Amend section 166(1) of the WHS Act so reference to “section 165” is replaced with “section 163”.

Change “section 165” to “section 163”.

Fixes a typographic error and ensures the NSW WHS Act aligns with the model legislation.

Individuals are directed to the appropriate section - providing an inspector the power of entry, rather than to general powers on entry.

Recommendation four

Amend the WHS Act to permit the recording of interviews by the Regulators without consent, subject to the interviewee being given notice that his or her interview is being recorded.

Section 185A

Clarifying that an interview can be recorded using sound recording or audio-visual devices without the consent of the person being interviewed – following notice given that the recording will take place.

To provide a clear, accurate and
objective record of the interview which reduces the scope for dispute as to the content of any representation made in an interview.

This will speed up the recording process, making it more efficient and effective for all concerned.

There will be no increase in the Regulators’ current powers in relation to requiring a person to answer questions, nor does it remove any rights of the person being interviewed in relation to being warned of their obligation to answer questions and their protection in relation to derivative use of self-incriminating admissions.

A copy of the recording would also be provided to the interviewee.

Recommendation five

Make a reference to the Attorney General in section 230(5) of the WHS Act.

Amendment to the WHS Act so it identifies the Attorney General as another party who has ability to bring proceedings for an offence against the WHS Act is not affected by section 230, in the same manner as that of the Director of Public Prosecutions.

Under section 8(1) of the Criminal Procedure Act 1986, the Attorney General or the Director of Public Prosecutions may prosecute an indictable offence.

Under s229B (3) of the WHS Act, “Category 1” (reckless conduct) offences are indictable offences.

Clarifies the Attorney General can prosecute an indictable offence in line with the Criminal Procedure Act 1986.

Recommendation six

Amend the WHS Act regarding the validity of appointments and delegations in criminal proceedings, which detract from the substantive issues of the case, and delay and increase the cost of the proceedings.

A new provision has been inserted - section 233A to provide for a certificate of evidence as being admissible in any proceedings under the WHS Act as prima facie evidence of the matter being certified.

There have been several cases where delegations executed by a WHS Regulator authorising the prosecutor to bring proceedings under the WHS Act have been challenged during court proceedings against companies for alleged contraventions of WHS laws. This adds significant time and cost to proceedings.

This amendment does not change the Regulators’ current powers in any way.

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