Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
Part 6 Compliance measures
Division 6.1 Interpretation for pt 6
75 Meaning of responsible person for pt 6
In this part:
"responsible person", for a contravention of a provision of this Act, means a person who is required to do something, or not do something, under the provision.
Division 6.2 Information and documents
75A Chief executive may require answers to questions and production of documents
(1) This section applies if the chief executive believes, on reasonable grounds, that a person (the relevant person ) may have contravened, or may be contravening, a provision of this Act.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(2) The chief executive may, by written notice given to a person (including the relevant person), require the person to attend before the chief executive at a stated reasonable time and place to do either or both of the following:
(a) answer questions that the chief executive considers necessary to decide whether the relevant person has contravened or is contravening this Act;
(b) produce the documents stated in the notice.
Note For how the notice may be served, see Legislation Act, pt 19.5.
(3) The chief executive may require a person to produce a document under subsection (2) (b) only if the chief executive considers the production necessary to decide whether the relevant person has contravened or is contravening this Act.
(4) The notice must—
(a) state that the requirement is made under this section; and
(b) contain a statement to the effect that failure to comply with the notice is an offence; and
(c) if the notice requires the person to answer questions—
(i) contain a statement about the effect of section 75E (Privileges against selfincrimination and exposure to civil penalties); and
(ii) state that the person may attend with a lawyer.
(5) To remove any doubt, for this section, a person answers a question if the person explains why the person or an entity did or did not do something.
75B Compliance with notice to produce
(1) This section applies if a person is required by a notice under section 75A to produce a document but not to answer questions.
(2) The person is taken to have complied with the requirement to produce the document if the person—
(a) does not attend before the chief executive; but
(b) gives the document to the chief executive before the time stated for attendance in the notice.
75C Failure to attend before chief executive or produce documents
(1) A person commits an offence if—
(a) the person is required by a notice under section 75A to attend and answer questions before the chief executive; and
(b) the person fails to attend before the chief executive in accordance with the notice.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the person is required by a notice under section 75A to produce a stated document; and
(b) the person fails to produce the document.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability offence.
75D Attendance before chief executive—offences
(1) A person commits an offence if—
(a) the person is required under section 75A to attend and answer questions before the chief executive; and
(b) the person attends before the chief executive; and
(c) the chief executive requires the person to answer a question; and
(d) the person fails to answer the question.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the person is required by a notice under section 75A to attend and answer questions before the chief executive; and
(b) the person attends before the chief executive; and
(c) the person fails to continue to attend as reasonably required by the chief executive until excused from further attendance.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability offence.
75E Privileges against selfincrimination and exposure to civil penalties
(1) This section applies if—
(a) a person is attending before the chief executive in accordance with a requirement under section 75A; and
(b) the chief executive requires the person to answer a question.
(2) This section also applies if a person is required by a notice under section 75A to produce a document.
(3) The person cannot rely on the common law privileges against selfincrimination and exposure to the imposition of a civil penalty to refuse to answer the question or produce the document.
Note The Legislation Act, s 171 deals with client legal privilege.
(4) However, any information, document or thing obtained, directly or indirectly, because of the giving of the answer or the production of the document is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for an offence against this part or the Criminal Code, part 3.4 (False or misleading statements, information and documents).
Division 6.3 Compliance agreements
75F Meaning of relevant responsible person for div 6.3
In this division:
"relevant responsible person", for a compliance agreement, means the responsible person for a workplace who enters into the agreement.
75G Inspector may seek compliance agreement
(1) This section applies if an inspector believes, on reasonable grounds, that a provision of this Act has been, is being or may be contravened in relation to a workplace.
Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
(2) The inspector may ask a responsible person for the workplace, other than an employee at the workplace, to enter into an agreement (a compliance agreement ) in relation to the contravention.
(3) If the responsible person agrees to enter into a compliance agreement, the agreement must—
(a) state that it is a compliance agreement under this Act; and
(b) state the contravention of this Act in relation to which the agreement is entered into; and
(c) state the period for which the agreement is to operate; and
(d) state the measures to be taken by the responsible person or anyone else to ensure this Act is complied with and the times within which the measures must be taken; and
(e) be signed by the inspector and the responsible person.
Examples of measures for par (d)
1 only direct people to work in confined place if they have appropriate safety training
2 fit scaffolding with handrails and kickboards before using the scaffolding
3 repair or replace particular plant
Note An example is part of this Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(4) The compliance agreement may include anything else the inspector and the relevant responsible person consider appropriate.
(5) The inspector must give a copy of the compliance agreement to the relevant responsible person.
75H Term of compliance agreement
(1) A compliance agreement commences when the agreement is signed by the inspector and relevant responsible person, or at any later time stated in the agreement.
(2) The compliance agreement ends—
(a) at the end of the period of operation stated in the agreement; or
(b) if the inspector and relevant responsible person agree to extend the period of operation before the end of the stated period—at the end of the extended period.
(3) If an inspector is satisfied that the compliance agreement has been complied with before it ends, the inspector must revoke the agreement by written notice given to the relevant responsible person.
75I Compliance agreement not admission of fault etc
(1) This section applies if a responsible person for a workplace enters into a compliance agreement in relation to a contravention of this Act.
(2) Entering into the compliance agreement—
(a) is not an express or implied admission of fault or liability by the responsible person in relation to the contravention; and
(b) is not relevant to deciding fault or liability in relation to the contravention.
(3) Also, evidence of the existence or contents of the compliance agreement is not—
(a) admissible in a civil proceeding as evidence of the fault or liability of a person in relation to the contravention; or
(b) admissible in a criminal proceeding in relation to the contravention; or
(c) relevant to the taking of action in relation to an authorisation (however described) held by a person under this Act.
Note 1 This section does not prevent the giving of an improvement notice or prohibition notice in relation to the relevant contravention (see Legislation Act, s 44 and s 197).
Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
75J Notification and display of compliance agreements
(1) This section applies to the relevant responsible person for a compliance agreement.
(2) The person commits an offence if the person fails to—
(a) tell each person (an affected person ) whose work is affected by the measures to be taken under the agreement about the agreement, including the measures; and
(b) give a copy of the agreement to each other person in control of each workplace where an affected person works.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that, while the agreement is operating, a copy of the agreement is displayed in a prominent place at each premises affected by the contravention of this Act in relation to which the agreement was entered into.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability offence.
75K Compliance agreement not to be removed etc
(1) A person commits an offence if—
(a) a copy of a compliance agreement is displayed at premises; and
(b) the person removes, alters, damages, defaces or covers the copy while the agreement is operating.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
Division 6.4 Improvement notices
76 Meaning of relevant responsible person for div 6.4
In this division:
"relevant responsible person", for an improvement notice, means the person to whom the inspector gives the notice.
76A Giving improvement notices
An inspector may give a notice (an improvement notice ) to a responsible person for a workplace if the inspector believes, on reasonable grounds, that a person has contravened, is contravening, or is likely to contravene, this Act in relation to the workplace.
Note 1 For how documents may be served, see Legislation Act, pt 19.5.
Note 2 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
76B Contents of improvement notices
(1) An improvement notice may require the relevant responsible person to do 1 or more of the following:
(a) put stated premises, plant or a system into a safe condition, including, for example, by repairing or replacing the premises, plant or system;
(b) comply with a particular provision of this Act in relation to the workplace;
(c) do anything else to ensure that this Act is complied with in relation to the workplace.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) Also, the improvement notice must—
(a) state that it is an improvement notice under this Act; and
(b) state the contravention of this Act in relation to which the notice is given; and
(c) state the period for complying with the notice.
(3) The improvement notice may include any other information the inspector considers appropriate.
76C Scope of improvement notices
(1) An improvement notice for a workplace may relate to 1 or more of the following:
(a) premises forming the workplace;
(b) plant or a system at the workplace;
(c) an activity at the workplace;
(d) a circumstance at the workplace.
Note Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).
(2) This section does not limit the scope of an improvement notice for a workplace.
76D Extension of time for compliance with improvement notices
(1) This section applies if a responsible person for a workplace has been given an improvement notice.
(2) An inspector may, by written notice given to the responsible person, extend the compliance period for the improvement notice on the inspector's own initiative or if asked by the responsible person.
(3) However, the inspector may extend the compliance period only if the period has not ended.
(4) In this section:
"compliance period" means the period stated in the improvement notice under section 76B (2) (c), and includes that period as extended under this section.
76E Notification and display of improvement notices
(1) This section applies to the relevant responsible person for an improvement notice.
(2) The person commits an offence if the person fails to—
(a) tell each person (an affected person ) whose work is affected by anything required to be done under the notice about the notice, including the things required to be done under it; and
(b) give a copy of the notice to each other person in control of each workplace where an affected person works.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that, while the notice is in force, a copy of the notice is displayed in a prominent place at each premises affected by the contravention of this Act in relation to which the notice was given.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability offence.
76F Improvement notice not to be removed etc
(1) A person commits an offence if—
(a) a copy of an improvement notice is displayed at premises; and
(b) the person removes, alters, damages, defaces or covers the copy while the notice is in force.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
76G Revocation of improvement notice on compliance
If an inspector is satisfied that an improvement notice has been complied with, the inspector must revoke the notice by written notice given to the relevant responsible person.
76H Contravention of improvement notices
(1) The relevant responsible person for an improvement notice commits an offence if the person fails to take all reasonable steps to comply with a requirement of the notice.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability offence.
Division 6.5 Prohibition notices
77 Definitions for div 6.5
In this division:
"basis", for giving a prohibition notice, means—
(a) the contravention of this Act in relation to which the prohibition notice was given (see section 77A (a)); or
(b) the risk to be prevented or minimised under the notice (see section 77A (b) (i)); or
(c) the inspection, testing or monitoring to be allowed under the notice (see section 77A (b) (ii)); or
(d) the accident or other incident to be investigated under the notice (see section 77A (b) (iii)).
"relevant responsible person", for a prohibition notice, means the responsible person for a workplace to whom the notice is given.
77A Giving prohibition notices
An inspector may give a notice (a prohibition notice ) to a responsible person for a workplace if the inspector believes, on reasonable grounds—
(a) that someone at the workplace has contravened, is contravening, or is likely to contravene, this Act; or
(b) that giving the notice is necessary—
(i) to prevent or minimise risk of serious harm to the health or safety of people from a hazard at the workplace; or
(ii) to allow the inspection, testing or monitoring of anything at the workplace; or
(iii) to allow the investigation of an accident or other incident (including a dangerous occurrence) at the workplace.
Example for par (b) (ii)
to allow for routine compliance testing of plant and systems if the responsible person has not voluntarily agreed to the plant or system being shutdown for the test
Note 1 For how documents may be served, see Legislation Act, pt 19.5.
Note 2 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
Note 3 An example is part of this Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
77B Contents of prohibition notices
(1) A prohibition notice in relation to a workplace may require a responsible person for the workplace not to do 1 or more of the following until the notice ends:
(a) use stated premises, plant, systems, substances or things;
(b) disturb stated premises, plant, systems, substances or things;
(c) something else at or in relation to the workplace.
(2) Also, the prohibition notice—
(a) must state the following:
(i) that it is a prohibition notice under this Act;
(ii) the workplace to which the notice relates;
(iii) the basis for giving the notice; and
(b) if the notice is given under section 77A (a) or (b) (i) (which are about notices given in relation to contravention of this Act or to prevent or minimise risk of serious harm)—must include a statement to the effect that the relevant responsible person may ask for a reinspection of the situation or circumstances that caused the notice to be given if the person considers that the situation or circumstances comply with this Act; and
(c) if the notice is given under section 77A (b) (ii) or (iii) (which are about notices given to allow inspection, testing, monitoring and investigation)—must state the reasonable period that the inspector considers necessary to carry out the inspection, testing, monitoring or investigation to which the notice relates.
77C Scope of prohibition notices
(1) A prohibition notice for a workplace may relate to 1 or more of the following:
(a) premises forming the workplace;
(b) plant or a system at the workplace;
(c) an activity at the workplace;
(d) a circumstance at the workplace.
Note Premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle (see dict).
(2) This section does not limit the scope of a prohibition notice for a workplace.
77D Extension of time for inspection etc
(1) This section applies if a prohibition notice is given under section 77A (b) (ii) or (iii).
(2) An inspector may, by written notice given to the relevant responsible person for the prohibition notice, extend the relevant period for the notice on the inspector's own initiative or if asked by the relevant responsible person.
(3) However, the inspector may extend the relevant period only if the period has not ended.
(4) In this section:
"relevant period" means the period stated in the prohibition notice under section 77B (2) (c), and includes that period as extended under this section.
77E Notification and display of prohibition notices
(1) This section applies to the relevant responsible person for a prohibition notice.
(2) The person commits an offence if the person fails to—
(a) tell everyone who works at the workplace to which the notice relates about the notice, including anything required not to be done under it; or
(b) give a copy of the notice to each person (or each other person) in control of the workplace to which the notice relates.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that, while the notice is in force, a copy of the notice is displayed in a prominent place at each premises to which the notice relates.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability offence.
77F Prohibition notice not to be removed etc
(1) A person commits an offence if—
(a) a copy of a prohibition notice is displayed at premises; and
(b) the person removes, alters, damages, defaces or covers the copy while the notice is in force.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability offence.
77G Ending of prohibition notices for contravention of Act etc
(1) This section applies to a prohibition notice if the notice was given under section 77A (a) or (b) (i) (which are about notices given in relation to contravention of this Act or to prevent or minimise risk of serious harm).
(2) The prohibition notice ends when the notice is revoked under section 77I.
77H Request for reinspection
(1) This section applies to a prohibition notice given under section 77A (a) or (b) (i).
(2) The relevant responsible person for the prohibition notice may ask the commissioner, in writing, for a reinspection of the situation or circumstances that caused the notice to be given if the person considers that the situation or circumstances comply with this Act.
(3) If the request relates to a vehicle or equipment, the vehicle or equipment must be made available for reinspection where it was originally inspected or at another place agreed to by an inspector.
77I Revocation on reinspection
(1) This section applies if a request has been made under section 77H.
(2) If the inspector who carries out the reinspection is satisfied that there are no grounds for the prohibition notice to continue to operate, the inspector may revoke the notice by written notice given to the relevant responsible person for the prohibition notice.
(3) Also, the prohibition notice is taken to be revoked on the 3 rd business day after the day the request for reinspection is received by the commissioner if—
(a) an inspector does not make the reinspection within 2 business days after the day the request is received; and
(b) the person who made the request is not responsible, completely or partly, for the delay in making the reinspection.
Note For the meaning of business day , see Legislation Act, dict, pt 1.
(4) This section does not prevent an improvement notice or another prohibition notice being given to the same person in relation to the same contravention of this Act.
77J Ending of prohibition notices given for inspection etc
(1) This section applies to a prohibition notice if the notice was given under section 77A (b) (ii) or (iii) (which are about notices given to allow inspection, testing, monitoring and investigation).
(2) The prohibition notice ends at the end of the period stated in the notice under section 77B (2) (c) (Contents of prohibition notices) or, if the period is extended under section 77D, the end of the extended period.
77K Contravention of prohibition notices
(1) The relevant responsible person for a prohibition notice commits an offence if the person fails to take all reasonable steps to ensure the notice is not contravened.
Maximum penalty: 200 penalty units.
(2) An offence against this section is a strict liability offence.
77L Request for compensation for prohibition notice
(1) This section applies if—
(a) a prohibition notice is given in relation to a workplace; and
(b) a person suffers loss or expense because of the giving of the notice; and
(c) the person considers that there were insufficient grounds for giving the notice.
(2) The person may apply, in writing, to the Minister for compensation.
(3) The application must give reasons why the person considers that there were insufficient grounds for giving the prohibition notice.
77M Compensation for prohibition notice
(1) This section applies if a person applies under section 77L for compensation in relation to the giving of a prohibition notice.
(2) If, after considering the application, the Minister is satisfied that there were insufficient grounds for giving the prohibition notice, the Territory must pay the person the reasonable compensation decided by the Minister.
(3) However, compensation is not payable to the person—
(a) in relation to any loss or expense suffered by the person because of an act or omission of the person; or
(b) if the person caused or contributed to the situation or circumstances that caused the prohibition notice to be given.
(4) The Minister must give the person written notice of the Minister's decision on the application.
(5) If the Minister does not decide the application within 28 days after the day the Minister receives the application, the Minister is taken to have refused to pay compensation.
Division 6.6 Enforceable undertakings
78 Definitions for div 6.6
In this division:
"alleged contravention"—see section 78A (3) (b).
"enforceable undertaking "means a safety undertaking that has been accepted under section 78B.
"relevant person", for an enforceable undertaking, means the person who gave the undertaking.
"safety undertaking"—see section 78A (2).
78A Making of safety undertakings
(1) This section applies if the chief executive alleges that a person has contravened a provision of this Act.
Note A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
(2) The person may give the chief executive a written undertaking (a safety undertaking ) to comply with the provision.
(3) The safety undertaking must—
(a) state that it is an enforceable undertaking under this Act; and
(b) acknowledge that the chief executive alleges that the person has contravened a stated provision of this Act (the alleged contravention ); and
(c) identify the facts and circumstances of the alleged contravention; and
(d) include 1 or more undertakings relating to the alleged contravention.
Examples of undertakings
1 to cease a certain conduct
2 to take particular action to compensate people adversely affected by a contravention of this Act
3 to take particular action to rectify a state of affairs that arose as a direct or indirect result of the contravention
4 to take particular action (including implementing particular systems) to prevent future contraventions of this Act
5 to implement publicity or education programs
Note An example is part of this Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
78B Acceptance of safety undertaking
(1) The chief executive may accept a safety undertaking by written notice given to the person who gave the undertaking.
(2) On acceptance of the safety undertaking, the undertaking becomes an enforceable undertaking.
78C Withdrawal from or amendment of enforceable undertaking
(1) A relevant person for an enforceable undertaking may withdraw from or amend the undertaking only with the chief executive's written agreement.
(2) However, the enforceable undertaking may not be amended to provide for a different alleged contravention.
78D Term of enforceable undertaking
(1) A safety undertaking is enforceable from the time it becomes an enforceable undertaking.
(2) The chief executive may end an enforceable undertaking by written notice to the relevant person for the undertaking if satisfied that the undertaking is no longer necessary or desirable.
(3) The chief executive may act under subsection (2) on the chief executive's own initiative or on the application of the relevant person for the enforceable undertaking.
(4) The undertaking ends when the relevant person for the enforceable undertaking receives the chief executive's notice.
78E Safety undertaking not admission of fault etc
(1) This section applies if a person gives the chief executive a safety undertaking, whether or not the undertaking is accepted by the chief executive.
(2) Giving the safety undertaking—
(a) is not an express or implied admission of fault or liability by the person in relation to the alleged contravention; and
(b) is not relevant to deciding fault or liability in relation to the alleged contravention.
78F Contravention of enforceable undertakings
(1) If the chief executive believes, on reasonable grounds, that an enforceable undertaking has been contravened by anyone, the chief executive may apply to the Magistrates Court for an order under subsection (2).
(2) If the Magistrates Court is satisfied that the enforceable undertaking has been contravened, the court may make 1 or more of the following orders:
(a) an order requiring the relevant person for the undertaking to ensure that the undertaking is not contravened;
(b) an order requiring the relevant person for the undertaking to pay to the Territory the amount assessed by the court as the value of the benefits anyone derived, directly or indirectly, from the contravention of the undertaking;
(c) an order that the court considers appropriate requiring the relevant person for the undertaking to compensate someone who has suffered loss or damage because of the contravention of the undertaking;
(d) any other order that the court considers appropriate.
(3) A person commits an offence if the person fails to take all reasonable steps to comply with an order under subsection (2).
Maximum penalty: 200 penalty units.
(4) An offence against this section is a strict liability offence.
Division 6.7 Injunctions
79 Injunctions to restrain offences against Act
(1) This section applies if a person has committed, is committing, or is likely to commit, an offence against this Act.
Note 1 A reference to an offence against a Territory law includes a reference to an offence against the Criminal Code, pt 2.4 (Extensions of criminal responsibility) or the Crimes Act 1900 , s 181 (Accessory after the fact) that relates to the Territory law (see Legislation Act, s 189).
Note 2 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including regulations and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).
(2) The chief executive or any other interested person may apply to the Magistrates Court for an injunction.
(3) On application under subsection (2), the Magistrates Court may grant an injunction restraining the person from contravening this Act (including by requiring the person to do something).
(4) The Magistrates Court may grant the injunction—
(a) whether or not it appears to the court that the person intends to contravene this Act, contravene this Act again or continue to contravene this Act; and
(b) whether or not the person has previously contravened this Act; and
(c) whether or not there is a likelihood of the health or safety of a person being affected if the person contravenes this Act; and
(d) whether or not a proceeding for an offence against this Act has begun or is about to begin.
(5) The Magistrates Court may grant an interim injunction restraining the person from committing an offence against this Act (including requiring the person to do something) before deciding an application for an injunction under this section.
79A Enforcement of injunctions
The Magistrates Court has the same powers as the Supreme Court to enforce an injunction (including an interim injunction) made under this division.
79B Amendment or discharge of injunctions
The Magistrates Court may amend or discharge an injunction (including an interim injunction) made under this division on the application of the chief executive or any other interested person.
79C Interim injunctions—undertakings about damages
(1) If the chief executive applies for an injunction under this division, the Magistrates Court must not require the chief executive to give an undertaking about costs or damages as a condition of granting an interim injunction.
(2) The Magistrates Court must accept an undertaking from the chief executive about costs or damages, and not require a further undertaking from anyone else, if—
(a) the applicant for an injunction under this division is not the chief executive; and
(b) the court would, apart from this subsection, require the applicant to give an undertaking about costs or damages; and
(c) the chief executive gives the undertaking.
79D Magistrates Court's other powers not limited
(1) The powers given to the Magistrates Court under this division are in addition to any other powers of the court.
(2) In particular, an application to the Magistrates Court for an injunction under this division may be made without notice to the person against whom the injunction is sought.