Commonwealth Numbered Regulations

EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 326 - SCHEDULE 1

(regulation 3)

[1001] Subregulation 22A (3)

substitute

(3)

A person must comply with a direction given to him or her under subregulation (1).

Penalty:
5 penalty units.

(4)

An offence against subregulation (3) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

(5)

It is a defence to a prosecution for an offence against subregulation (3) if the person had a reasonable excuse.

Note
A defendant bears an evidential burden in relation to the question whether he or she had a reasonable excuse (see section 13.3 of the Criminal Code ).

[1002] Subregulation 31 (2), penalty

substitute

Penalty:
10 penalty units.

[1003] After subregulation 31 (2), including the penalty

insert

(3)

An offence against subregulation (2) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

[1004] Subregulation 32 (5), penalty

substitute

Penalty:
10 penalty units.

[1005] After subregulation 32 (5), including the penalty

insert

(6)

An offence against subregulation (5) is an offence of strict liability.

Note
For strict liability , see section 6.1 of the Criminal Code .

[1006] Regulation 35

substitute

35 Alteration or disturbance of site of accident or dangerous occurrence
(1) An employer commits an offence if:

(a)

the employer engages in conduct, or allows another person to engage in conduct, that results in the alteration or disturbance of the site of an accident or dangerous occurrence arising out of an undertaking by the employer; and

(b) at the time of the conduct:

(i)

an investigation of the accident or dangerous occurrence had not been completed; and

(ii)

the investigator had not given permission for the alteration or disturbance of the site.

Penalty:
10 penalty units.

(2)

It is a defence to a prosecution for an offence against subregulation (1) if the employer had a reasonable excuse.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (2) (see section 13.3 of the Criminal Code ).

(3) It is a defence to a prosecution for an offence against subregulation (1) if, at the time of the conduct, the employer had given a notice of the accident or dangerous occurrence to Comcare in accordance with section 68 of the Act and:

(a)

Comcare had given notice that investigation of the accident or dangerous occurrence was not required; or

(b)

an investigator had not entered the workplace where the site of the accident or dangerous occurrence is located in response to the notice within 1 working day of the employer giving notice to Comcare.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (3) (see section 13.3 of the Criminal Code ).

(4) Without limiting subregulation (2), an employer has a reasonable excuse if the employer engages in, or allows another person to engage in, the conduct that results in the alteration or disturbance of the site of an accident or dangerous occurrence in the course of:

(a)

the rescue, or attempted rescue, of an injured person; or

(b)

the retrieval, or attempted retrieval, of the body of a deceased person; or

(c)

the protection, or attempted protection, of the health or safety of a person; or

(d)

the prevention, or attempted prevention, of damage being done to a substance or thing;

if the alteration or disturbance is unavoidable.

[1007] Subregulation 37A (1), penalty

omit

[1008] Subregulation 37A (2)

substitute

(2)

An employer must give a notice required by subsection 68 (1) of the Act within the time required by subregulation (1).

Penalty:
10 penalty units.

(3)

Strict liability applies in subregulation (2) to the physical element that a notice is required by subsection 68 (1).

Note
For strict liability , see section 6.1 of the Criminal Code .

(4)

It is a defence to a prosecution for an offence against subregulation (2) that it was not reasonably practicable for the defendant to give the notice within the time required.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (4) (see section 13.3 of the Criminal Code ).

[1009] Subregulation 37D (1), penalty

omit

[1010] Subregulation 37D (3)

substitute

(3)

An employer must give a report required by subsection 68 (1) of the Act within the time required by this regulation.

Penalty:
10 penalty units.

(4)

Strict liability applies in subregulation (3) to the physical element that a report is required by subsection 68 (1).

Note
For strict liability , see section 6.1 of the Criminal Code .

(5)

It is a defence to a prosecution for an offence against subregulation (3) that it was not reasonably practicable for the defendant to give the report within the time required.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (5) (see section 13.3 of the Criminal Code ).