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Crimes (Workplace Deaths and Serious
Injuries) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 states that the purposes of the Act are--
· to create new criminal offences of corporate
manslaughter and negligently causing serious injury by
a body corporate in certain circumstances; and
· to impose criminal liability on senior officers of a body
corporate in certain circumstances; and
· to increase penalties in health and safety legislation; and
· to make other miscellaneous amendments to health and
safety legislation.
Clause 2 provides that the Act will come into operation on the day after
the day on which it receives Royal Assent.
PART 2--AMENDMENT OF CRIMES ACT 1958
Clause 3 inserts new Subdivision (3) into Division 1 of Part 1 of the
Crimes Act 1958 (new sections 11-14F).
New section 11
New section 11(1) defines the terms "agent", "conduct",
"employee", "industry", "outworker", "senior officer", "serious
injury" and "worker" used in the Subdivision.
The term "agent" means a person (including an independent
contractor) engaged by the body corporate to provide services to
541062 BILL LA CIRCULATION 23/11/2001
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the body corporate, but only in relation to matters over which the
body corporate--
· has control, or
· would have had control but for any agreement between
the body corporate and the agent to the contrary
The term "agent" also includes agents of an agent, and agents of
an agent of an agent (and so on). It is only necessary that an
agent has control or would have had control over the next agent
down the chain.
So, if an agent (the first agent) has an agent (the second agent),
then the first agent should control the second agent. However, if
the second agent also has an agent (the third agent), only the
second agent should control the third agent (ie it would not be
necessary for the first agent to control the third agent) etc.
The body corporate's control test is limited to the first agent.
The term "conduct" includes an omission to act.
The term "employee" does not include an independent contractor.
However the term "agent" may include an independent contractor
(as outlined above).
The term "industry" includes--
· any trade, manufacture, business, project or occupation in
which persons work; or
· part of an industry or a number of industries.
The term "outworker" means a person engaged, for someone
else's industry, in or about premises that are not necessarily
business or commercial premises--
· to pack, process or work on articles or material; or
· to carry out clerical work.
The term "senior officer" has the same meaning as "officer" has
in relation to a corporation in the Corporations Act 2001
(Commonwealth). The term "director" within this definition
of "officer" is further defined in the Corporations Act.
The definition of "senior officer" also includes that expanded
definition of "director".
The Occupational Health and Safety Act 1985 provides
offences for officers of bodies corporate. The term "officer" in
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the Occupational Health and Safety Act 1985 is defined
differently from the term "senior officer" in this Subdivision.
The Corporations Act definition focuses on managers at
higher levels in the body corporate's management structure.
These managers are therefore entitled "senior officers" rather
than "officers".
The term "serious injury" has the same meaning as in
Subdivision (4) of Division 1 of Part I of the Crimes Act 1958.
Section 15 of Subdivision (4) defines the term as "includes a
combination of injuries". Section 15 of Subdivision (4) also
defines the term "injury" as "includes unconsciousness, hysteria,
pain and any substantial impairment of bodily function".
The term "worker" includes--
· senior officers of a body corporate (who are not
employees of the body corporate defendant);
· agents (including independent contractors) of any
employer;
· employees and senior officers of agents;
· people deemed to be employees under statutes;
· employees of the Crown;
· outworkers; and
· apprentices and trainees.
The term "agent" includes agents, agents of an agent, and agents
of an agent of an agent (and so on). For the purposes of
determining whether a person is a worker, the "control test"
contained in new section 11(1) for the definition of an agent,
does not apply. The "control test" applies when determining the
conduct that is to be attributed to the body corporate.
When determining whether a person is a "worker", it is not
necessary that an employer have "control" over the first agent, or
that an agent have "control" over the next agent down the chain.
A "worker" also includes employees and senior officers of any of
these agents.
Public sector employees are included because they are
technically employees of the Crown (rather than the Department
or statutory authority that they work for) under the Public Sector
Management and Employment Act 1998.
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The new criminal offences of corporate manslaughter (new
section 13) and negligently causing serious injury by a body
corporate (new section 14) created in this Subdivision only apply
if--
· an employee is killed or seriously injured in the course of
their employment by the body corporate; or
· a worker is killed or seriously injured in the course of
doing work for or providing services to, or relating to, the
body corporate.
New section 11(2) identifies four circumstances, without limiting
the circumstances, when a death or serious injury is deemed to
occur in the course of employment. The death or serious injury
is deemed to occur in the course of employment in any of the
circumstances in paragraph (a), (b), (c) or (d) of section 83(1) of
the Accident Compensation Act 1985.
New section 11(3) also identifies the same four circumstances,
without limiting the circumstances, when a death or serious
injury is deemed to occur in the course of doing work for or
providing services to, or relating to, the body corporate.
Those circumstances are outlined in paragraphs (a), (b), (c) or (d)
of section 83(1) of the Accident Compensation Act 1985.
Any reference to employment in those paragraphs also includes a
reference to doing work for or providing services under a
contract or other arrangement.
New section 11(4) provides that a reference to the provision of
services includes the performing of work.
New section 12
New section 12(1) provides that this Subdivision binds any body
corporate that represents the Crown if the body corporate is
established by or under an Act or is deemed or declared to be a
body corporate by or under an Act.
New section 12(2) clarifies that it is the intention of Parliament
that bodies corporate identified in sub-section (1) can be
prosecuted and sentenced for the new offences created by this
Subdivision.
New section 12(3) clarifies that the Director of Public
prosecutions may, on behalf of the Crown, prosecute bodies
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corporate identified in sub-section (1) for the new offences
created by this Subdivision.
New section 12(4) ensures that new section 12 does not affect the
binding of the Crown by other provisions of the Crimes Act
1958.
New section 13
New section 13 creates a new statutory offence of corporate
manslaughter. A body corporate that by negligence kills--
· an employee in the course of his or her employment by
the body corporate; or
· a worker in the course of providing services to, or relating
to, the body corporate--
is guilty of the indictable offence of corporate manslaughter.
A body corporate is liable on conviction to a fine not exceeding
50 000 penalty units ($5 000 000).
New section 14
New section 14 creates a new statutory offence of negligently
causing serious injury by a body corporate. A body corporate
that by negligence causes serious injury to--
· an employee in the course of his or her employment by
the body corporate; or
· a worker in the course providing services to, or relating
to, the body corporate--
is guilty of an indictable offence.
A body corporate that is guilty of the offence is liable to a fine
not exceeding 20 000 penalty units ($2 000 000).
New section 14A
New section 14A identifies certain conduct of a body corporate
that can be considered by a court for the new offences.
New section 14A(1) provides that the conduct of an employee or
a senior officer of an agent acting within the actual scope of their
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employment or within their actual authority must be attributed to
that agent.
New section 14A(2) provides that the conduct of an employee,
agent or senior officer of a body corporate acting within the
actual scope of their employment or within their actual authority
must be attributed to that body corporate.
A court will therefore be able to consider the conduct of one,
some or all of the body corporate's employees, agents (including
employees and senior officers of the agent) and senior officers
acting within the actual scope of their employment or within their
actual authority.
However, this section must be read with the definitions of
"employee", "agent" and "senior officer" in new section 11.
For example, the conduct of an agent can only be considered in
relation to matters over which the body corporate has 'control' (as
outlined above).
This section must also be read with new section 14B(5)(b),
which limits the way that negligence of an agent can be
considered.
New section 14B
New section 14B identifies the principles of negligence that a
court must apply for the new statutory offences.
New section 14B(1) provides that for the purposes of section 13
(corporate manslaughter), the conduct of a body corporate is
negligent if it involves such a great falling short of the standard
of care that a reasonable body corporate would exercise in the
circumstances; and such a high risk of death or really serious
injury that the conduct merits criminal punishment for the
offence.
The offence will only apply where there is gross negligence;
mere negligence will be insufficient. The prosecution will
have to prove gross negligence beyond reasonable doubt.
The common law standard for gross negligence will continue to
apply (see R. v. Nydam [1977] VR 430).
To determine whether there has been a breach of the standard of
care owed by the body corporate, the comparison will therefore
be made between the body corporate's conduct and the conduct
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that would have been expected of a reasonable body corporate in
the circumstances.
The test enables evidence to be given about what a reasonable
corporation would do in providing safety for its workforce.
It can also apply in emergency situations where a court would
consider the context in which decisions were made.
For example, the court may consider that an emergency service
cannot control the workplace (such as when fighting a fire), but
can have some control over work systems.
Further, the circumstances in which decisions are made may be
very important in determining what would have been expected of
a reasonable body corporate. For example, the courts may draw
a large difference between--
· making quick decisions (out of necessity) based on
minimal information where the objective is to save lives
(for example, when fighting a fire); and
· making long term decisions in the boardroom (for
example, not to purchase safety equipment and not to
hire appropriately qualified staff).
The conduct of a body corporate must involve a high risk of
death or really serious injury. When directing a jury for a charge
of manslaughter, the term "really serious injury" is also used by a
court to define the elements of the offence. Really serious injury
is different from serious injury (as defined in section 11).
New section 14B(2) provides that the same test for determining
negligence applies for section 14 (negligently causing serious
injury by a body corporate), except that it will be sufficient if
there is a high risk of serious injury (rather than death or really
serious injury). A high risk of serious injury is also sufficient for
negligently causing serious injury (by a natural person) under
section 24 of the Crimes Act 1958.
New section 14B(3) clarifies that in determining whether a body
corporate is negligent, the relevant duty of care is that owed by
the body corporate to the person killed or seriously injured.
The common law principles for establishing whether a duty of
care exists in particular situations will continue to apply.
New section 14B(4) provides that in determining whether a body
corporate is negligent, the conduct of the body corporate as a
whole must be considered.
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New section 14B(5) provides that, for the purposes of section
14B(4), the conduct of any number of the employees, agents or
senior officers of the body corporate may be aggregated.
Further, while regard may be had to the negligence of any agent
in the provision of services, that negligence must not be
attributed to the body corporate.
The focus is on the organisational responsibility of the body
corporate. The ability to aggregate the conduct of employees,
agents and senior officers allows this to be achieved. All of the
relevant conduct of the body corporate must be considered to
determine if the standard of care of a reasonable body corporate
has been breached.
While it is possible to aggregate the relevant conduct of any
number of people, it may be that all of the relevant conduct
resides in one person. In such a case, there would be no need to
aggregate at all. It is unlikely that the conduct of all employees,
agents and senior officers will be relevant in most cases. It will
only be necessary to aggregate relevant conduct.
The negligence of an agent is not treated as part of the body
corporate's negligence. However, the body corporate's
management of an agent can be considered. The negligence of
the body corporate's employees, agents or senior officers can be
considered where, for example, they knowingly engage an
unskilled independent contractor and someone is killed or
seriously injured by the contractor's conduct.
New section 14B(6) provides five examples that, without limiting
the evidence that a court may consider, may provide evidence of
negligence by the body corporate. The examples do not indicate
the degree of negligence that may be involved. The new
offences will still only apply where there is evidence of gross
negligence in the particular case.
New section 14C
New section 14C creates new offences for senior officers of a
body corporate.
New section 14C(1) creates a new offence for senior officers of a
body corporate if it is proved that the body corporate has
committed an offence against section 13 (corporate
manslaughter).
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There are also additional elements that must be proved before a
senior officer is guilty. It must be proved that the senior
officer--
· was organisationally responsible for the conduct, or part
of the conduct, of the body corporate in relation to the
offence by the body corporate; and
· in performing or failing to perform his or her
organisational responsibilities, materially contributed to
the offence by the body corporate; and
· knew that, as a consequence of his or her conduct, there
was a substantial risk that the body corporate would
engage in conduct that involved a high risk of death or
really serious injury to a person.
Further, it must be proved that having regard to the
circumstances known to the senior officer, it was unjustifiable
to allow that substantial risk to exist.
As the offence involves derivative, rather than direct, liability, it
is unnecessary for the senior officer to personally owe a duty of
care to the person killed. However, the body corporate must owe
a duty of care to that person before the senior officer can be
liable for this offence.
If all of the elements are proved, the senior officer is guilty of an
indictable offence and liable to level 6 imprisonment (5 years
maximum) or a level 4 fine (1800 penalty units maximum) or
both.
New section 14C(2) creates a similar offence for senior officers
of a body corporate if it is proved that the body corporate has
committed an offence against section 14 (negligently causing
serious injury by a body corporate).
The same additional elements of the offence outlined above must
also be proved, except that it will be sufficient if the body
corporate's conduct involved a high risk of serious injury (rather
than death or really serious injury).
If all of these elements are proved, the senior officer is guilty of
an indictable offence and liable to level 7 imprisonment (2 years
maximum) or a level 5 fine (1200 penalty units maximum) or
both.
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New section 14C(3) identifies three factors that, without limiting
the factors that may be considered, a court may consider in
determining whether a senior officer has been organisationally
responsible (in the context outlined above)--
· the extent to which the senior officer was in a position
to make or influence a decision about the conduct or
that part of the conduct;
· the participation of the senior officer in a decision of the
board of directors about the conduct or that part of the
conduct; and
· the degree of participation of the senior officer in the
management of the body corporate.
New section 14C(4) provides that the offences do not apply to
senior officers who act as such without any (or the expectation of
any) fee, gain or reward. The reimbursement of reasonable
expenses incurred while acting as a senior officer would not
involve a fee, gain or reward.
New section 14C(5) provides that a senior officer may be
prosecuted whether or not the body corporate has been
prosecuted for or convicted or found guilty of an offence against
section 13 or section 14. However, the guilt of the body
corporate must still be proved beyond reasonable doubt.
New section 14C(6) clarifies that the new offences are not triable
summarily.
New section 14D
New section 14D creates new sentencing orders that a court may
impose.
New section 14D(1) provides that the new sentencing orders only
apply if a court finds a body corporate guilty of an offence
against section 13 (corporate manslaughter) or section 14
(negligently causing serious injury by a body corporate).
New section 14D(2) provides that in addition to or instead of any
other penalty the court may impose, the court may order the body
corporate to--
· take specified action to publicise the offence, any deaths
or serious injuries or other consequences of the offence
and the sentence imposed;
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· notify persons about the offence, any deaths or serious
injuries or other consequences of the offence and the
sentence imposed; or
· perform specified acts or establish or carry out a
specified project for the public benefit.
Examples of the different types of orders are also provided.
New section 14D(3) provides that in making the order, the court
may specify a period within which the order must be completed
and may also impose any other requirements that it considers
necessary or expedient for enforcement of the order or to make
the order effective.
New section 14D(4) provides that the total cost to the body
corporate of compliance with an order or orders under sub-
section (2) must not exceed--
· $5 000 000 where the body corporate is guilty of
corporate manslaughter; and
· $2 000 000 where the body corporate is guilty of
negligently causing serious injury.
New section 14D(5) provides that if the court decides to make an
order under sub-section (2), it must take into account, as far as
practicable, the financial circumstances of the body corporate and
the burden that the order will impose.
However, new section 14D(6) provides that the court is not
prevented from making an order under sub-section (2) if it has
been unable to ascertain the financial circumstances of the body
corporate.
New section 14D(7) provides that if a body corporate fails,
without reasonable excuse, to comply with an order under sub-
section (2)(a) or (b), the court may on application by the
Victorian WorkCover Authority, order the Authority to carry out
the order and to publicise the failure of the body corporate to
comply with the order.
If a court makes such an order, new section 14D(8) provides that
the Authority must comply with the order. Further, if the
Authority incurs any costs in complying with the order, new
section 14D(10) provides that it may recover these costs as a debt
due and payable by the body corporate.
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New section 14D(9) clarifies that nothing in new section 14D(7)
prevents contempt of court proceedings against a body corporate
that has failed to comply with an order under the section.
New section 14E
New section 14E clarifies that nothing in the Subdivision
prevents a body corporate being prosecuted for manslaughter or
any other offence.
The new offences of corporate manslaughter and negligently
causing serious injury by a body corporate only apply when the
victim is a worker who is killed or seriously injured in the course
of their employment. The existing offences of manslaughter
under the common law or negligently causing serious injury
under section 24 of the Crimes Act 1958 are therefore available
for other victims.
Where the new offences apply, prosecutions will also be
available under existing offences. However, a body corporate
could not be punished under both the new offences and existing
offences. Under section 51 of the Interpretation of Legislation
Act 1984, a person (including a body corporate) cannot be
punished more than once for the same conduct.
New section 14F
New section 14F provides that it is immaterial that some of the
conduct constituting an offence against the Subdivision occurred
outside Victoria, so long as the death or serious injury occurred
in Victoria. For example, decisions made by senior officers in
another State about safety issues may be relevant conduct of the
body corporate in determining negligence.
Clause 4 amends section 325 of the Crimes Act 1958 to provide
maximum penalties for the offence of being an accessory to the
new offences. An accessory to an offence of corporate
manslaughter will be liable to a maximum penalty of 5 years
imprisonment. An accessory to an offence of negligently causing
serious injury by a body corporate will be liable to a maximum
penalty of 2 years imprisonment.
Clause 5 inserts a new section 595 into the Crimes Act 1958.
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New section 595(1) provides that the new offences in sections 13
and 14 only apply to deaths and serious injuries where the
allegedly negligent conduct occurs on or after the
commencement of this amending Act.
New section 595(2) clarifies that the new offences do not apply
to deaths or serious injuries where the allegedly negligent
conduct occurred before the commencement of this amending
Act even if the death or serious injury occurred on or after that
commencement.
PART 3--AMENDMENT OF DANGEROUS GOODS ACT 1985
Clause 6 amends section 20(3) of the Dangerous Goods Act 1985 to
restrict the privilege against self-incrimination to natural persons
only, consistent with the position at common law.
Clause 7 amends section 45 of the Dangerous Goods Act 1985 to provide
that offences against the Act itself (as distinct from
contraventions of the regulations) will now be indictable
offences. This will only apply to proceedings commenced after
the commencement of clause 7.
Clause 8 amends the penal provisions by increasing maximum penalties
for offences. The new maximum penalties are--
(a) for offences generally (section 45)--
· for an indictable offence by a body corporate--
a fine of $600 000;
· for a non-indictable offence by a body
corporate--$80 000;
· for an indictable offence by a natural person--
$120 000;
· for a non-indictable offence by a natural
person--$30 000;
(b) for the offence of obstructing an inspector (section 20)--
· for a body corporate--a fine of $750 000;
· for a natural person--$150 000 or 12 months
imprisonment or both;
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(c) for offences enforced by means of infringement notice
(section 45B)--
· for a body corporate--a fine of 25 penalty units
($2500);
· for a natural person--a fine of 5 penalty units
($500).
PART 4--AMENDMENT OF EQUIPMENT (PUBLIC SAFETY)
ACT 1994
Clause 9 amends section 20 of the Equipment (Public Safety) Act 1994
to restrict the privilege against self-incrimination to natural
persons only, consistent with the position at common law.
Clause 10 amends penal provisions in the Equipment (Public Safety) Act
1994 by increasing maximum penalties for offences. The new
maximum penalties are--
(a) for offences generally (section 26)--
· for an indictable offence by a body corporate--
a fine of $600 000;
· for a non-indictable offence by a body
corporate--$80 000;
· for an indictable offence by a natural person--
$120 000;
· for a non-indictable offence by a natural
person--$30 000;
(b) for the offence of obstructing an inspector (section 21)
and the offence of non-compliance with a prohibition
notice (section 23)--
· for a body corporate--a fine of $750 000;
· for a natural person--$150 000 or 12 months
imprisonment or both;
(c) for offences enforced by means of infringement notice
(section 27)--
· for a body corporate--a fine of 25 penalty units
($2500);
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· for a natural person--a fine of 5 penalty units
($500).
Clause 10 also repeals section 32, which provides for a potential
double penalty for repeat offenders.
PART 5--AMENDMENT OF THE OCCUPATIONAL HEALTH
AND SAFETY ACT 1985
Clause 11 amends section 40(8) of the Occupational Health and Safety
Act 1985 to restrict the privilege against self-incrimination to
natural persons only, consistent with the position at common law.
Clause 12 amends penal provisions by increasing maximum penalties for
offences. The new maximum penalties are--
(a) for offences generally (section 47)--
· for an indictable offence by a body corporate--
a fine of $600 000;
· for a non-indictable offence by a body
corporate--$80 000;
· for an indictable offence by a natural person--
$120 000;
· for a non-indictable offence by a natural
person--$30 000;
(b) for the offence of obstructing an inspector (section 42),
the offence of non-compliance with a prohibition notice
(section 44) and the offence of discrimination
(section 54)--
· for a body corporate--a fine of $750 000;
· for a natural person--$150 000 or 12 months
imprisonment or both;
(c) for offences enforced by means of infringement notice
(section 47A)--
· for a body corporate--a fine of 25 penalty units
($2500);
· for a natural person--a fine of 5 penalty units
($500).
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Clause 12 also repeals section 53, which provides for a potential
double penalty for repeat offenders.
Clause 13 increases the maximum penalty to be imposed on an employer
for breaching the obligation (section 21) to establish and
maintain a safe working environment. The new maximum
penalties will be--
· for a body corporate--a fine of $600 000;
· for a natural person--$120 000 or 12 months
imprisonment or both;
Clause 14 amends section 54 (offence of discrimination) so that an offence
is committed where a prohibited discriminatory reason is the sole
or a substantial reason for the employer taking the adverse
action.
PART 6--AMENDMENT OF MAGISTRATES' COURT ACT
1989
Clause 15 amends Schedule 4 to the Magistrates' Court Act 1989 by
substituting new maximum penalties that the Court can impose
for indictable offences under the Equipment (Public Safety)
Act 1994 (new clause 52A), the Occupational Health and
Safety Act 1985 (new clause 53) and the Dangerous Goods Act
1985 (new clause 53A).
Maximum penalties under--
(a) new clause 52A (Equipment (Public Safety) Act 1994)
are--
(i) for the offence of obstructing an inspector
(section 21) and the offence of non-compliance
with a prohibition notice (section 23)--
· for a body corporate--a fine of $200 000;
· for a natural person--$60 000 or
12 months imprisonment or both;
(ii) for other offences--
· for a body corporate--a fine of $200 000;
· for a natural person--$60 000;
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(b) new clause 53 (Occupational Health and Safety Act
1985) are--
(i) for the offences of failing to establish and maintain
a safe working environment (section 21(1)),
obstructing an inspector (section 42), non-
compliance with a prohibition notice (section 44)
and discrimination (section 54)--
· for a body corporate--a fine of $200 000;
· for a natural person--$60,000 or
12 months imprisonment or both;
(ii) for other offences--
· for a body corporate--a fine of $200 000;
· for a natural person--$60 000;
(c) new clause 53A (Dangerous Goods Act 1985) are--
(i) for the offence of obstructing an inspector
(section 20(1))--
· for a body corporate--a fine of $200 000;
· for a natural person--$60 000 or
12 months imprisonment or both;
(ii) for other offences--
· for a body corporate--a fine of $200 000;
· for a natural person--$60 000.
PART 7--AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985
Clause 16 amends section 242 of the Accident Compensation Act 1985 so
that an offence is committed where a prohibited discriminatory
reason is the sole or a substantial reason for the employer taking
the adverse action.
Clause 17 amends section 243 of the Accident Compensation Act 1985 by
adding the Chief Commissioner of Police to the list of persons to
whom information can be given by staff of the Victorian
WorkCover Authority.
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