Commonwealth Numbered Regulations

EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 326 - SCHEDULE 2

(regulation 4)

[2001] Part 2, Division 2, before regulation 2.06

insert

2.05A Qualified employees and qualified contractors
(1) For this Division, an employee is qualified for an occupation if:

(a)

the employee holds a valid certificate of competency for the class of occupation; or

(b)

the certifying authority in the State or Territory has exempted the employee from holding a certificate of competency for the class of occupation; or

(c)

the employee holds a valid Class A Commonwealth certificate for the class of occupation; or

(d) the employee holds a valid Class B Commonwealth certificate:

(i)

for the class of occupation; and

(ii)

in relation to the employer who controls the performance of the work; or

(e)

the employee is allowed, under regulation 2.07A, 2.07B, 2.07C or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth certificate or a Class B Commonwealth certificate.

(2) For this Division, a contractor is qualified for an occupation if:

(a)

the contractor holds a valid certificate of competency for the class of occupation; or

(b)

the certifying authority in the State or Territory has exempted the contractor from holding a certificate of competency for the class of occupation; or

(c)

the contractor holds a valid Class A Commonwealth certificate for the class of occupation; or

(d) the contractor holds a valid Class B Commonwealth certificate:

(i)

for the class of occupation; and

(ii)

in relation to the employer who controls the performance of the work or who controls the workplace; or

(e)

the contractor is allowed, under regulation 2.07D, 2.07E or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth certificate or a Class B Commonwealth certificate.

[2002] Regulations 2.06 and 2.07

substitute

2.06 Performing the work of a regulation 2.03 occupation

(1)

An employee must not perform the work of a regulation 2.03 occupation if the employee is not qualified for the occupation.

Penalty:
10 penalty units.

(2) A contractor must not perform the work of a regulation 2.03 occupation at a workplace if the contractor is not qualified for the occupation.

Penalty:
10 penalty units.

(3)

Strict liability applies in subregulations (1) and (2) to the physical element that the work is of a regulation 2.03 occupation.

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

2.07 Allowing a person to perform the work of a regulation 2.03 occupation

(1)

An employer must not allow an employee to perform the work of a regulation 2.03 occupation if the employee is not qualified for the occupation.

Penalty:
10 penalty units.

(2)

An employer must not allow a contractor to perform the work of a regulation 2.03 occupation at a workplace if the contractor is not qualified for the occupation.

Penalty:
10 penalty units.

(3)

Strict liability applies in subregulations (1) and (2) to the physical element that the work is of a regulation 2.03 occupation.

Note 1
For subregulation (3), for strict liability , see section 6.1 of the Criminal Code .
Note 2
Employers can use the translation tables in the Equivalence and Translation Tables to determine:

(a) the classes of occupational health and safety certificates of competency that were issued by State and Territory certifying authorities before the implementation of the National Standard; and
(b) the translation of those classes to classes in the National Standard.

[2003] Paragraph 2.07B (2) (c)

omit

, as far as practicable,

[2004] After subregulation 2.07B (2), including the penalty

insert

(2A)

It is a defence to a prosecution for an offence against paragraph (2) (c) if the employer ensured as far as practicable that the trainee was given directions and demonstrations so as to ensure that the trainee was able to perform the work of the occupation in a manner that was safe and without risk to health and safety.

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

[2005] Paragraph 2.07B (4) (c)

omit

, as far as practicable,

[2006] After subregulation 2.07B (4), including the penalty

insert

(4A)

It is a defence to a prosecution for an offence against paragraph (4) (c) if the employer monitored the trainee's performance of tasks as far as practicable so as to ensure that the trainee was able to perform the work of the occupation in a manner that was safe and without risk to health and safety.

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

[2007] After subregulation 2.07B (5), including the penalty

insert

(6)

Strict liability applies in subregulations (1) and (2) to the physical element that the work performed by the trainee is a regulation 2.03 occupation.

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

[2008] After subregulation 2.07F (7), including the penalty

insert

(8)

An offence against subregulation (7) is an offence of strict liability.

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

[2009] After subregulation 2.08 (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 .

[2010] After subregulation 2.12 (2)

insert

(3)

An offence against subregulation (1) is an offence of strict liability.

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

[2011] Subregulation 3.08 (1)

omit

, as far as reasonably practicable,

[2012] After subregulation 3.08 (1), including the penalty

insert

(1A)

It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1A) (see section 13.3 of the Criminal Code ).

[2013] Subregulation 3.08 (2)

omit

, as far as reasonably practicable,

[2014] After subregulation 3.08 (2), including the penalty

insert

(2A)

It is a defence to a prosecution for an offence against subregulation (2) if the employer complied with the subregulation as far as reasonably practicable.

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

[2015] Subregulation 3.08 (3), Step 1 and Step 2

omit

, as far as reasonably practicable,

[2016] After subregulation 3.08 (3), including the penalty

insert

(3A) It is a defence to a prosecution for an offence against subregulation (3) if the employer:

(a)

implemented engineering noise controls in accordance with STEP 1; and

(b)

implemented administrative noise controls in accordance with STEP 2;

as far as reasonably practicable.

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

[2017] After subregulation 3.08 (4), including the penalty

insert

(4A)

Strict liability applies to the physical element in paragraph (4) (a) that the appropriate personal hearing protector complies with the requirements of Australian Standard AS 1270 ( Acoustics — Hearing Protectors ).

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

(4B)

Strict liability applies to the physical element in paragraph (4) (b) that the appropriate personal hearing protector is in accordance with the requirements of Australian Standard AS 1269 ( Acoustics — Hearing Conservation ).

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

[2018] Subregulation 3.09 (1)

omit

must, as far as reasonably practicable:

insert

must:

[2019] After subregulation 3.09 (1), including the penalty

insert

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the noise control measure is implemented in accordance with this Part.

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

(1B)

It is a defence to a prosecution for an offence against subregulation (1) if the employee complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

[2020] Subregulation 3.10 (1)

omit

must, as far as reasonably practicable:

insert

must:

[2021] After subregulation 3.10 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (a) that the noise control measure is implemented in accordance with this Part.

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

(1B)

It is a defence to a prosecution for an offence against subregulation (1) if the contractor complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

[2022] After subregulation 4.04 (1), including the penalty

insert

(1A) Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

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

[2023] After subregulation 4.04 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the risks are assessed in accordance with subregulation (3) and Division 7.

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

[2024] After subregulation 4.05 (1), including the penalty

insert

(1A) Strict liability applies to the physical element in subregulation (1) that:

(a)

the risk assessment is conducted for the purposes of regulation 4.04; and

(b)

the risk is minimised in accordance with Division 7 and subregulation (2).

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

[2025] After subregulation 4.05 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in paragraph (2) (d) that a standard referred to in Schedule 5 is relevant.

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

[2026] Paragraph 4.05 (4) (b)

omit

for the purpose of rectifying

insert

on how to rectify

[2027] After subregulation 4.07 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7.

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

[2028] Subregulation 4.07 (2)

omit

as far as reasonably practicable

[2029] After subregulation 4.07 (2), including the penalty

insert

(2A)

It is a defence to a prosecution for an offence against subregulation (2) if the supplier complied with the subregulation as far as reasonably practicable.

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

[2030] Regulation 4.08

omit

A supplier of used plant

insert

(1)

A supplier of used plant

[2031] Regulation 4.08 

after the notes, insert

(2)

Strict liability applies to the physical element in subregulation (1) that the record is kept for the purposes of these Regulations.

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

[2032] After subregulation 4.09 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

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

[2033] After subregulation 4.09 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the risks are assessed in accordance with Division 7.

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

[2034] After subregulation 4.10 (1), including the penalty

insert

(1A) Strict liability applies to the physical elements in subregulation (1) that:

(a)

the risks assessment is conducted for the purposes of subregulation 4.09 (2) or (5); and

(b)

the risk is minimised in accordance with Division 7.

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

[2035] After subregulation 4.11 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

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

[2036] After subregulation 4.11 (2), including the penalty

insert

(2A) Strict liability applies to the physical elements in subregulation (2) that:

(a)

the plant was in use before the commencement of subregulation (2); and

(b)

the hazards were identified in accordance with Division 7.

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

[2037] After subregulation 4.11 (3), including the penalty

insert

(3A)

Strict liability applies to the physical element in subregulation (3) that the risks associated with the hazard are assessed in accordance with Division 7 and subregulation (4).

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

[2038] After subregulation 4.12 (1), including the penalty

insert

(1A) Strict liability applies to the physical element in subregulation (1) that:

(a)

the risk assessment is conducted for the purposes of subregulation 4.11 (3) or (7); and

(b)

the risk is minimised in accordance with Division 7 and subregulation (2).

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

[2039] After subregulation 4.14 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7 and subregulation (2).

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

[2040] After subregulation 4.15 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7.

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

[2041] Paragraph 4.15 (2) (a)

substitute

(a) if the plant is operated by an employee at work, or a contractor of the employer — the employee or contractor:

(i)

receives necessary information and training in the operation of the plant; and

(ii)

is supervised to the extent necessary to minimise the risk to health and safety; and

[2042] Paragraph 4.15 (2) (c)

substitute

(c)

the plant is used solely for the purpose for which it was designed; and

[2043] After subregulation 4.15 (2), including the penalty

insert

(2A)

It is a defence to a prosecution for an offence against paragraph (2) (c) if the employer determined, and a competent person assessed, that a change in the purpose for which the plant is used does not present an increased risk to the health and safety of a relevant person.

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

[2044] Subregulation 4.15 (4)

substitute

(4) The employer must ensure that plant at work is not available for use if:

(a)

the function or condition of the plant is impaired or damaged; and

(b)

the impairment or damage creates an immediate risk to the health and safety of an employee or a contractor of the employer.

Penalty:
10 penalty units.

(5) It is a defence to a prosecution for an offence against subregulation (4) if the employer:

(a)

controlled the risk in accordance with this Division; or

(b)

repaired the plant in accordance with regulation 4.16.

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

[2045] After subregulation 4.19 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the plant is the plant referred to subregulation (2).

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

[2046] After subregulation 4.19 (3), including the penalty

insert

(3A)

Strict liability applies to the physical element in subregulation (3) that the length of time is the length of time identified by the employer under subparagraph 4.11 (4) (b) (iii).

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

[2047] Subregulation 4.19 (4)

omit

employer, unless the plant is being sold for scrap or as spare parts for other plant.

insert

employer.

[2048] After subregulation 4.19 (4), including the note

insert

(5)

It is a defence to a prosecution for an offence against subregulation (4) if the employer sold the plant for scrap or as spare parts for other plant.

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

[2049] After subregulation 4.20 (1), including the penalty

insert

(1A) Strict liability applies to the physical elements in subregulation (1) that:

(a)

the pressure equipment is the equipment referred to in AS 1200 ( SAA Boiler Code ); and

(b)

the inspection is in accordance with AS 3788 ( Boiler and Pressure Vessels — In-Service Inspection ).

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

[2050] After subregulation 4.20 (2), including the penalty

insert

(2A) Strict liability applies to the physical element in subregulation (2) that the inspection is in accordance with AS 2030 ( SAA Gas Cylinders Code ).

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

[2051] After subregulation 4.20 (3), including the penalty

insert

(3A)

Strict liability applies to the physical element in subregulation (3) that the inspection and testing is in accordance with AS 2030 ( SAA Gas Cylinders Code ) and AS 2337 ( Gas Cylinder Test Stations ).

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

[2052] After subregulation 4.20 (4), including the penalty

insert

(4A) Strict liability applies to the physical elements in subregulation (4) that the cylinder:

(a)

bears a current inspection mark in accordance with AS 2030 ( SAA Gas Cylinders Code ); and

(b)

is filled in accordance with AS 2030 ( SAA Gas Cylinders Code ).

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

[2053] Regulation 4.21

substitute

4.21 Plant with moving parts
(1) If a risk assessment identifies a risk to health and safety arising from the moving parts of plant used at work, the employer must take all reasonably practicable steps to ensure that:

(a)

the plant is not cleaned, maintained or repaired while the plant is operating; and

(b)

if the guarding of a moving part does not completely eliminate the risk of entanglement, a person does not operate, or pass in close proximity to, the plant.

Penalty:
10 penalty units.

(2)

It is a defence to a prosecution for an offence against paragraph (1) (a) if there was no other reasonably practicable approach.

(3)

It is a defence to a prosecution for an offence against paragraph (1) (b) if a safe system of work was introduced, enforced and maintained to minimise the risk of entanglement.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulations (2) and (3) (see section 13.3 of the Criminal Code ).

[2054] Subregulation 4.22 (4)

omit

commences, unless the tractor:

insert

commences.

[2055] Paragraphs 4.22 (4) (a) and (b)

omit

[2056] After subregulation 4.22 (4), including the penalty

insert

(4A) It is a defence to a prosecution for an offence against subregulation (4) if the tractor:

(a)

was manufactured, or imported into Australia, before 1 January 1981, and was not operated by an employee; or

(b)

was installed in a fixed position, and in a manner, that no longer allowed it to be used as powered mobile plant.

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

(4B)

Strict liability applies to the physical element in subregulation (4) that the tractor is of a kind to which the testing requirements of AS 1636 ( Agricultural Wheeled Tractors — Roll-Over Protective Structures Criterion and Tests ) apply.

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

[2057] After subregulation 4.22 (6), including the penalty

insert

(6A)

Strict liability applies to the physical element in subregulation (6) that the machinery is of a kind referred to in AS 2294 ( Protective Structures for Earthmoving Machines ).

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

[2058] After subregulation 4.22 (7), including the penalty

insert

(7A) Strict liability applies to the following physical elements:

(a)

in paragraph (7) (a) — that the structure complies with AS 1636 ( Agricultural Wheeled Tractors — Roll-Over Protective Structures Criterion and Tests ) or AS 2294 ( Protective Structures for Earthmoving Machines );

(b)

in subparagraph (7) (b) (i) — that the protective structure is designed in accordance with the performance requirements of AS 2294 ( Protective Structures for Earthmoving Machines );

(c)

in subparagraph (7) (b) (iii) — that the information is required by AS 2294 ( Protective Structures for Earthmoving Machines ).

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

[2059] Regulation 4.24

omit

An employer must

insert

(1)

An employer must

[2060] Paragraph 4.24 (f)

omit

on the day on which this Regulation commences.

insert

on 31 March 1995.

[2061] Regulation 4.24

after the penalty, insert

(2)

Strict liability applies to the physical element in paragraph (1) (f) that the requirements are those of the relevant electrical supply authority, as in force on 31 March 1995.

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

[2062] Regulation 4.25

omit

An employer must

insert

(1)

An employer must

[2063] Paragraph 4.25 (b)

substitute

(b)

for plant that is not specifically designed for the lifting or suspending of individuals — individuals are not lifted or suspended by the plant, or an attachment to the plant; and

[2064] Paragraph 4.25 (f)

substitute

(f)

for plant other than a crane or hoist — the plant is not used to suspend a load; and

[2065] Paragraph 4.25 (i)

substitute

(i)

for an industrial life truck or tractor — no individual other than the operator is permitted to ride on the truck or tractor.

[2066] Regulation 4.25

after the penalty, insert

(2) It is a defence to a prosecution for an offence against paragraph (1) (b) if:

(a)

the use of another method was not practicable; and

(b)

a suitable and adequate personnel box or carrier, designed for the purpose, was used and securely attached to the plant; and

(c)

the plant was fitted with a means by which the personnel box or carrier may be safely lowered in the event of an emergency or the failure of the power supply; and

(d)

the plant was suitably stabilised at all times while the personnel box or carrier is in use; and

(e)

a suitable safety harness, securely attached to a suitable point, was provided to and worn by all individuals who are in a suspended personnel box or carrier, unless the personnel box or carrier is fully enclosed.

(3) It is a defence to a prosecution for an offence against paragraph (1) (f) if:

(a)

the use of a crane or hoist was not practicable; and

(b)

the load was only travelled with the lifting arm of the plant fully retracted; and

(c)

stabilisers were provided and used where necessary to achieve stability of the plant; and

(d)

relevant persons were not permitted to be under the load; and

(e)

a welded lug was used as the lifting point; and

(f)

if a bucket operated by a trip-type catch was used — the catch was bolted or otherwise positively engaged; and

(g)

an appropriate load chart was provided and all lifting was carried out within the safe working load limits of the plant; and

(h)

safe working load limits were displayed clearly on the plant; and

(i)

a load was lifted using attachments suitable to the task to be performed.

(4) It is a defence to a prosecution against paragraph (1) (i) if:

(a)

the individual was seated in a seat specifically designed for carrying a passenger; and

(b)

the seat was fitted with suitable seat restraints; and

(c)

the seat was located within the area protected by the required operator protective devices.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulations (2), (3) and (4) (see section 13.3 of the Criminal Code ).

[2067] Subregulation 4.26 (1)

omit

equipment unless suitable controls and systems of work are in place for the control of risk in relation to the robot or equipment.

insert

equipment.

[2068] After subregulation 4.26 (1), including the penalty

insert

(1A)

It is a defence to a prosecution for an offence against subregulation (1) if suitable controls and systems of work were in place for the control of risk in relation to the robot or equipment.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1A) (see section 13.3 of the Criminal Code ).

[2069] Regulation 4.27

omit

An employer must

insert

(1)

An employer must

[2070] Paragraph 4.27 (a)

omit

unless it has been classified

insert

if it has not been classified

[2071] Regulation 4.27

after the note, insert

(2) Strict liability applies to the following physical elements:

(a)

in paragraph 4.27 (1) (a) — that the laser or laser product has been classified and labelled in accordance with AS 2211 ( Laser Safety );

(b)

in paragraph 4.27 (1) (b) — that the laser or laser product is for the purposes of AS 2211 ( Laser Safety );

(c)

in paragraph 4.27 (1) (c) — that the use of the laser or laser product is in accordance with AS 2397 ( Guide to the Safe Use of Lasers in the Construction Industry ).

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

[2072] Subregulation 4.28 (1)

omit

; until the employer has obtained written confirmation from a competent person that the scaffold, or the relevant part or portion of the scaffold, is complete

[2073] After subregulation 4.28 (1), including the penalty

insert

(1A)

It is a defence to a prosecution for an offence against subregulation (1) if the employer obtained written confirmation from a competent person that the scaffold, or the relevant part or portion of the scaffold, is complete.

Note
A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1A) (see section 13.3 of the Criminal Code ).

[2074] After subregulation 4.28 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the scaffold is of a kind referred to in subregulation (1).

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

[2075] Regulation 4.30

omit

An employee at work

insert

(1)

An employee at work

[2076] Regulation 4.30

after the penalty, insert

(2)

Strict liability applies to the physical element in paragraph (1) (a) that the requirement relating to plant was implemented in accordance with this Part.

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

[2077] Subregulation 4.37 (3)

substitute

(3) Subregulation (4) applies if:

(a)

plant used at work is designed to be operated or attended by 2 or more persons; and

(b)

the plant is fitted with 2 or more operational controls for this purpose.

(4) A person who is required to control a risk relating to plant mentioned in subregulation (3) must take all reasonably practicable steps to ensure that:

(a)

the operational controls are of the kind commonly known as stop and lock-off ; and

(b)

the plant cannot be restarted after a stop control has been used until each stop control has been reset.

Penalty:
10 penalty units.

[2078] Subregulation 4.40 (1)

substitute

(1) Subject to subregulation (2), an employer must not use plant at work, or allow plant to be used, if:
(a) the plant:

(i)

is to be operated at work; and

(ii)

is specified in column 2 of an item in Part 2 of Schedule 6; and

(b) the employer is not:

(i)

licensed to operate the plant; or

(ii)

exempted under paragraph 4.40A (4) (a).

Penalty:
10 penalty units.

(1A) Strict liability applies in subregulation (1) to the following physical elements:

(a)

in subparagraph (1) (a) (ii) — that the plant is specified in column 2 of an item in Part 2 of Schedule 6;

(b)

in subparagraph (1) (b) (ii) — that the employer is not exempted under paragraph 4.40A (4) (a).

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

[2079] Subregulation 4.49 (1)

substitute

(1) Subject to subregulation (2), an employer must not use plant, or allow employees at work to use plant, if the plant:

(a)

is specified in column 2 of an item in Part 1 of Schedule 6; and

(b)

does not have a current design registration number issued by the Commission under this Division.

Penalty:
10 penalty units.

(1A)

Strict liability applies to the physical element in paragraph (1) (a) that the plant is specified in column 2 of an item in Part 1 of Schedule 6.

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

[2080] Regulation 4.50

omit

If an employer

insert

(1)

If an employer

[2081] Regulation 4.50

after the penalty, insert

(2)

An offence against subregulation (1) is an offence of strict liability.

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

[2082] Subregulation 4.54 (1)

substitute

(1) Subject to subregulation (2), an employer must not use plant, or allow employees to use plant, if:

(a)

the Commission registers the design of the plant; and

(b)

the design is subsequently altered by an employer in control of the plant; and

(c)

the employer has not notified the design of the plant, as altered, to the Commission.

Penalty:
10 penalty units.

[2083] Subregulation 5.02 (1)

omit

, as far as reasonably practicable,

[2084] Subregulation 5.02 (2)

omit

, as far as reasonably practicable,

[2085] After subregulation 5.02 (2), including the penalty

insert

(3)

It is a defence to a prosecution for an offence against subregulation (1) or (2) if the employer complied with the subregulation as far as reasonably practicable.

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

[2086] After subregulation 5.03 (2), including the penalty

insert

(3)

Strict liability applies to the physical element in paragraph (2) (s) that the consultations are required under the Act or these Regulations.

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

[2087] Subregulation 5.04 (1)

omit

, as far as reasonably practicable,

[2088] After subregulation 5.04 (1), including the penalty

insert

(1A)

It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1A) (see section 13.3 of the Criminal Code ).

[2089] Subregulation 5.05 (1)

omit

, as far as reasonably practicable,

[2090] After subregulation 5.05 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the training in safe manual handling techniques is in accordance with paragraph 5.04 (2) (b).

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

(1B)

It is a defence to a prosecution for an offence against subregulation (1) if the employee complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

[2091] Subregulation 5.05 (2)

omit

, as far as reasonably practicable,

[2092] After subregulation 5.05 (2), including the penalty

insert

(3)

Strict liability applies to the physical element in subregulation (2) that the training is to give effect to a measure implemented under subregulation 5.04 (3) or (4).

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) if the employer complied with the subregulation as far as reasonably practicable.

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

[2093] After subregulation 6.04 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (a) that the substance is included in the List of Designated Hazardous Substances [NOHSC:10005 (1999)].

(1B)

Strict liability applies to the physical element in paragraph (1) (b) that the substance is a hazardous substance in accordance with the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

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

[2094] After subregulation 6.04 (2), including the penalty

insert

(3)

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

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

[2095] Regulation 6.07

omit

A supplier of hazardous substance

insert

(1)

A supplier of hazardous substance

[2096] Regulation 6.07

after the note, insert

(2)

Strict liability applies to the physical element in paragraph (1) (a) that the container is labelled in accordance with the National Code of Practice for the Labelling of Workplace Hazardous Substances [NOHSC:2012 (1994)].

(3)

Strict liability applies to the physical element in subparagraph (1) (b) (iii) that the information on the label is disclosed to the extent prescribed by regulation 6.08.

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

[2097] Subregulation 6.12 (4)

omit

, as far as reasonably practicable,

[2098] After subregulation 6.12 (4), including the penalty

insert

(4A)

It is a defence to a prosecution for an offence against subregulation (4) if the employer complied with the subregulation as far as reasonably practicable.

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

[2099] Paragraph 6.13 (1) (b)

omit

, as far as reasonably practicable,

[2100] After subregulation 6.13 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (a) that the container is labelled in accordance with regulation 6.07.

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

(1B)

It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code ).

[2101] After subregulation 6.13 (3), including the penalty

insert

(3A)

Strict liability applies to the physical element in subregulation (3) that the container is labelled correctly for the purposes of these Regulations.

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

[2102] After subregulation 6.14 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in paragraph (2) (b) that the copy of the MSDS is required under these Regulations.

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

[2103] After subregulation 6.17A (1)

insert

(1A) Strict liability applies to the following physical elements in subregulation (1):

(a)

that the carcinogenic substance is a scheduled carcinogenic substance;

(b)

that the circumstance in relation to that substance is the circumstance mentioned in the relevant item in column 3 of Schedule 1A.

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

[2104] After subregulation 6.17A (3), including the penalty

insert

(4)

Strict liability applies to the physical element in subregulation (3) that the carcinogenic substance is a scheduled carcinogenic substance.

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

[2105] After subregulation 6.19 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the risk assessment is carried out under regulation 6.17.

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

[2106] After subregulation 6.20 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the risk assessment is carried out under regulation 6.17.

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

[2107] After subregulation 6.20 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the register is referred to in subregulation 6.14 (1).

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

[2108] After subregulation 6.21 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in paragraph (1) (a) that the hazardous substance is listed in Schedule 2.

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

[2109] After subregulation 6.21 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in paragraph (2) (b) that the relevant procedure is referred to in column 3 of the item in Schedule 2.

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

[2110] Paragraph 6.21 (6) (b)

omit

as far as reasonably practicable,

[2111] After subregulation 6.21 (6), including the penalty

insert

(7)

It is a defence to a prosecution for an offence against paragraph (6) (b) if the employer complied with the paragraph as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (7) (see section 13.3 of the Criminal Code ).

[2112] After subregulation 6.22 (4), including the penalty

insert

(5)

An offence against subregulation (1), (2), (2A), (3) or (4) is an offence of strict liability.

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

[2113] Regulation 6.23

omit

An employer must ensure

insert

(1)

An employer must ensure

[2114] Regulation 6.23

after the penalty, insert

(2)

Strict liability applies to the physical element in subregulation (1) that the records are kept by the employer under this Part.

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

[2115] After subregulation 7.06 (1), including the penalty

insert

(1A)

Strict liability applies to the physical element in subregulation (1) that the risk assessment is undertaken under subregulation 7.05 (2).

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

[2116] After subregulation 7.06 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in paragraph (2) (b) that the exposure standard is identified in the document entitled Exposure Standards for Atmospheric Contaminants in the Occupational Environment, published by Worksafe Australia.

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

[2117] Subregulations 7.07 (1) and (2)

substitute

(1) An employer must ensure that a person does not enter a confined space if:

(a)

the confined space is under the control of the employer; and

(b)

it is not reasonably practicable to provide a safe oxygen level in the confined space; and

(c)

the person is not equipped with suitable personal protective equipment, including, if necessary air-supplied respiratory equipment.

Penalty:
10 penalty units.

(2) An employer must ensure that a person does not enter a confined space if:

(a)

the confined space is under the control of the employer; and

(b)

atmospheric contaminants in the confined space cannot be reduced to safe levels; and

(c)

the person is not equipped with suitable respiratory protective equipment.

Penalty:
10 penalty units.

[2118] After subregulation 7.07 (3), including the penalty

insert

(3A)

Strict liability applies to the physical element in paragraph (3) (b) that the risk assessment is undertaken under subregulation 7.05 (2).

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

[2119] Paragraph 7.07 (4) (a)

omit

unless at least 1 stand-by person is present

insert

without at least 1 stand-by person being present

[2120] After subregulation 7.07 (4), including the penalty

insert

(4A)

Strict liability applies to the physical element in subregulation (4) that the risk assessment is undertaken under subregulation 7.05 (2).

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

[2121] After subregulation 7.07 (5), including the penalty

insert

(6)

Strict liability applies to the physical element in subregulation (5) that the equipment is provided under this regulation.

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

[2122] Paragraph 7.08 (1) (c)

omit

, if reasonably practicable,

[2123] After subregulation 7.08 (1), including the penalty

insert

(1A)

It is a defence to a prosecution for an offence against paragraph (1) (c) if the employer complied with the paragraph as far as reasonably practicable.

Note
A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1A) (see section 13.3 of the Criminal Code ).

[2124] After subregulation 7.08 (2), including the penalty

insert

(2A)

Strict liability applies to the physical element in subregulation (2) that the risk assessment (if any) is undertaken under subregulation 7.05 (2).

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

[2125] Subregulation 7.10 (1)

omit

unless at least 1 stand-by person is present

insert

without at least 1 stand-by person being present

[2126] After subregulation 7.10 (1), including the penalty

(1A)

Strict liability applies to the physical element in subregulation (1) that the risk assessment (if any) is undertaken under subregulation 7.05 (2).

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

[2127] Regulation 7.12, note

omit

[2128] After subregulation 7.12 (5), including the penalty

insert

(6)

An offence against subregulation (1), (2), (3), (4), or (5) is an offence of strict liability.

Note 1
For strict liability , see section 6.1 of the Criminal Code.

Note 2
The following Australian Standards provide guidance on the subject matter of this Part:
(a) AS 1715: Selection, Use and Maintenance of Respiratory Protective Devices;
(b) AS 1716: Respiratory Protective Devices.

Note 3
AS 2865, Safe Working in a Confined Space, is an approved code of practice under section 70 of the Act.