Commonwealth Numbered Regulations

EMPLOYMENT AND WORKPLACE RELATIONS LEGISLATION AMENDMENT (APPLICATION OF CRIMINAL CODE) REGULATIONS 2001 (NO. 1) 2001 NO. 326 - SCHEDULE 3

(regulation 5)

[3001] Regulation 9

substitute

9 Alteration or disturbance of site of accident or dangerous occurrence
(1) A person in command of a prescribed ship or prescribed unit commits an offence if:

(a)

the person in command 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 a dangerous occurrence on the ship or unit; and

(b) at the time of the conduct:

(i)

an inspector had not inspected the site; and

(ii)

the inspector had not given permission in writing 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 person in command 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 person in command had given a notice of the accident or dangerous occurrence, and:

(a)

the Inspectorate had notified the person in command in writing that an inspection of the site of the accident or dangerous occurrence by an inspector was not required; or

(b)

the ship or unit was in an Australian port when notice was given of the accident or dangerous occurrence and an inspector did not visit the site within 24 hours of notice being given;

(c)

the ship or unit was at sea and proceeding to an Australian port when notice was given of the accident or dangerous occurrence, and an inspector did not visit the site within 24 hours of the arrival of the ship or unit at the port; or

(d)

the ship or unit was at sea and not proceeding to an Australian port when notice of the accident or dangerous occurrence was given.

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), a person in command had a reasonable excuse if either:

(a)

the alteration or disturbance was unavoidable; or

(b)

the person engaged in, or allowed another person to engage in, the conduct that resulted in the alteration or disturbance of the site of an accident or dangerous occurrence as a result of:

(i)

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

(ii)

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

(iii)

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

(iv)

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

(v)

the restoration, or attempted restoration, of a workplace to safe working conditions; or

(vi)

the performance, or attempted performance, of a task necessary for the proper operation of the ship or unit.

[3002] Paragraph 16 (1) (b)

omit

year;

insert

year.

[3003] Subregulation 16 (1)

omit

unless it is not reasonably practicable for the operator to report within that period.

[3004] After subregulation 16 (1), including the penalty

insert

(1A)

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

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 it is not reasonably practicable for the operator to report within the period required by subregulation (1).

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