Magistrates' Court (Occupational Health and Safety) Rules 2025

Entry permit - An entry permit is a document issued by the Magistrates’ Court under s 83 of the OHS Act 2004 that allows a person who is a member of a committee of management of a registered employee organisation (commonly a trade union) to enter a workplace for purposes connected with occupational health and safety. The permit is not defined in the Rules, but the application form (Form 1) refers to qualifications under s 81 of the OHS Act and a Minister’s determination under s 80 that caps the number of permits per organisation. The permit holder is the individual who will exercise entry rights under Part 8 of the OHS Act. The concept is central because the Rules exist solely to govern how such permits are applied for and how they can be revoked.

Revocation - Under s 85 of the OHS Act, an entry permit may be revoked by the Court on application by the Victorian WorkCover Authority or an employer. The Rules require the applicant to use Form 2, which must set out the grounds for revocation. The form references s 85(2), which requires written notice of the application to be given to the permit holder and the relevant registered employee organisation. The Rules then impose a procedural timeline: the registrar must fix a hearing date no later than 28 days after the application is filed (rule 8). This is a notable feature: it guarantees a relatively swift hearing for the revocation applicant, but equally it imposes a burden on the permit holder and the organisation to prepare a response quickly.

Registered employee organisation - Both forms refer to a registered employee organisation within the meaning of s 79 of the OHS Act. This is a union or other employee body that is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) or under Victorian law. The organisation is the entity on whose behalf the permit holder acts. In a revocation application, the organisation must receive notice of the application (per s 85(2), referenced in Form 2). The Rules do not otherwise affect the organisation’s rights or obligations.

Minister’s determination - The Form 1 affidavit requires the applicant to confirm that issue of the permit would not exceed any limit set in a Minister’s determination under s 80. This determination caps the number of entry permits an organisation may hold. It is an external constraint: even if a person is individually qualified, the Court cannot issue a permit if the organisation’s quota is full. The Rules do not define how the Minister’s determination is published or verified; the applicant simply makes a sworn statement.

Affidavit / Statutory declaration - Form 1 requires the application to be supported by an affidavit or statutory declaration made by the prospective permit holder. The form contains prescribed wording, including a statement about truth and consequences of false swearing. The deponent must disclose any prior revocations and any convictions under Part 8 of the OHS Act or indictable offences within five years. This creates a self-reporting regime; the Court does not conduct its own investigation. The applicant must also include the authorised affidavit taker or witness details. The form provides alternative paragraphs for affidavit versus statutory declaration, reflecting the Oaths and Affirmations Act 2018.

Exclusion of General Civil Procedure Rules - Rule 5 provides that the Magistrates’ Court General Civil Procedure Rules 2020 do not apply to applications under rules 6 and 7. This means the ordinary rules for service, filing, interlocutory applications, and discovery do not apply. The Court is left to rely on the OHS Act, the 2025 Rules, and its inherent jurisdiction. This reduces procedural complexity but also removes standard protections such as automatic timelines for defences or default judgment. Practitioners cannot assume that general civil procedure rules fill gaps.

The 2025 Rules directly affect three categories of persons and entities. First, officials of registered employee organisations (union officials) who seek to obtain an entry permit under s 83 of the OHS Act. They must complete Form 1 and swear or affirm the prescribed statements. The rules do not change the substantive eligibility criteria (set out in s 81 of the OHS Act), but they impose a procedural hurdle: the application must be made using the exact form, and the supporting affidavit must disclose prior revocations and criminal convictions. Officials who fail to disclose relevant matters risk the application being rejected or later challenged. The Rules also affect officials who are the subject of a revocation application: they must receive notice and appear at a hearing that must be listed within 28 days, which compresses preparation time.

Second, employers and the Victorian WorkCover Authority are the only parties entitled to apply for revocation under s 85. Form 2 requires them to specify grounds for revocation. The 28-day hearing rule (rule 8) benefits these applicants by ensuring a relatively speedy determination. However, the application itself must be properly served on the permit holder and the organisation, per s 85(2). The Rules do not prescribe the method of service; that is left to the applicant under the OHS Act. Employers may use the process to challenge a permit holder who they believe has acted improperly or no longer meets the qualifications. The cost of making a revocation application falls on the applicant: legal fees, preparation of evidence, and service. For a small employer, that cost may be a deterrent even when grounds exist.

Third, the Magistrates’ Court itself (the registrar and judicial officers) is affected. The registrar must fix a hearing date for revocation applications no later than 28 days after filing. This imposes an administrative obligation to manage listings within that window. The Court also gains the power under rule 9 to extend or abridge that time, which gives flexibility but creates uncertainty for parties who have relied on the 28-day deadline. The Court must also accept applications filed in the prescribed forms and presumably reject non-compliant applications (though the Rules do not explicitly say so). The exclusion of the General Civil Procedure Rules means the Court must apply a bespoke procedure; there is no default set of rules for case management, so the Court may need to develop its own practice directions for these applications.

Indirectly, the Rules affect workers who may rely on the entry permit system for workplace health and safety inspections. If a permit is revoked, the union official loses the right to enter, which may affect workers’ access to union representation. Conversely, a permit that is too easily obtained could impose compliance costs on employers who must accommodate entry. The Rules do not change the substantive balance, but the speed of revocation hearings (28 days) may make it easier for employers to challenge permits quickly. The Rules also affect legal practitioners who advise union officials or employers: they must ensure compliance with the prescribed forms and timelines, and be aware that the General Civil Procedure Rules do not apply, requiring them to look to the OHS Act and these Rules alone.

The 2025 Rules impose specific duties and create limited rights, all procedural in nature.

Duty to use correct form - Rule 6 requires an application for an entry permit to be in Form 1. Rule 7 requires an application for revocation to be in Form 2. The forms contain mandatory fields: name of applicant, occupation, organisation details, and a supporting affidavit or statutory declaration with prescribed statements. There is no express statement that an application using a different form is invalid, but the rules use the word “must”, which ordinarily creates a mandatory requirement. A court would likely hold that a non-compliant application is not properly made and could be rejected or struck out. The duty falls on the applicant (the organisation or the WorkCover Authority or employer).

Duty to include prescribed statements in affidavit - Form 1 requires the prospective permit holder to depose to five numbered matters: qualification under s 81, compliance with the Minister’s determination limit, disclosure of any permit revocations, disclosure of any Part 8 OHS Act convictions, and disclosure of any indictable offences within 5 years. The form also requires a statement about the truth of the contents and a warning about perjury or false statutory declaration. These are not optional. An applicant who omits a paragraph or gives an incomplete answer may be in contempt or face perjury charges if they swear falsely.

Right to apply for extension or abridgement of time - Rule 9 gives any party (or the Court on its own motion, arguably) the right to seek an extension or abridgement of the 28-day hearing date for a revocation application. The Court may extend time even after the 28 days have expired, and even if no application was made before expiry. This is a broad discretion. It benefits a respondent who needs extra time to prepare, or an applicant who needs to delay. However, it introduces uncertainty: the 28-day guarantee is not absolute if the Court exercises its discretion.

Right to a hearing within 28 days - For the revocation applicant, rule 8 creates a right to have a hearing date fixed no later than 28 days after filing. This is a significant procedural advantage; it ensures that the matter is not left to languish on the court list. For the permit holder, it is a burden: they must prepare a response quickly.

Duty of Registrar to fix hearing date - The registrar must fix a date no later than 28 days after the revocation application is filed. This is an administrative duty, not a judicial one. The registrar does not have discretion under rule 8; the only discretion lies with the Court under rule 9.

Notice obligations - Form 2 includes a note reminding applicants of the notice requirement under s 85(2) of the OHS Act: written notice of the application, setting out the grounds, must be given to the permit holder and the registered organisation. The Rules themselves do not impose service requirements; they cross-reference the Act. But the form is designed to be served with the application. An applicant who fails to give proper notice may find the application dismissed for non-compliance with the Act.

Right to make a statutory declaration instead of an affidavit - Form 1 offers an alternative: an applicant may make a statutory declaration under the Oaths and Affirmations Act 2018 rather than swearing an affidavit. This may be more convenient in some circumstances (e.g., no authorised affidavit taker available). However, both carry the same legal consequences for false statements.

The 2025 Rules do not themselves create any penalties. The enforcement consequences arise from the Oaths and Affirmations Act 2018 and the common law of perjury. Form 1 includes explicit warnings: in the affidavit version, the deponent acknowledges that making a false affidavit may lead to prosecution for perjury; in the statutory declaration version, the deponent acknowledges that making a statutory declaration known to be untrue is an offence. These are not penalties under the Rules but under general law. Perjury under Victorian law carries a maximum penalty of 15 years imprisonment (Crimes Act 1958, s 314). Making a false statutory declaration is an offence under the Oaths and Affirmations Act 2018, s 36, with a penalty of up to 5 years imprisonment. Practically, a person who makes a false statement in the application about their qualifications, criminal history, or the Minister’s determination cap could face criminal prosecution. This significantly raises the stakes: the form is not a mere administrative document.

The Rules also do not prescribe a penalty for filing an application in the wrong form or failing to comply with the mandatory content. However, the Court likely has inherent power to dismiss or strike out a non-compliant application. Alternatively, the application could be treated as a nullity, and any permit issued on the basis of a defective application might be subject to challenge. The exclusion of the General Civil Procedure Rules (rule 5) means that the Court cannot use the standard sanctions for non-compliance (e.g., default judgment, unless orders). This may leave the Court with limited options: it could reject the filing, adjourn for compliance, or make a procedural order under its general powers. The uncertainty around enforcement of the form requirements is a gotcha: the Rules say “must be in Form 1” but do not say “and if it is not, the application will not be accepted”. Practitioners should assume strict compliance is required.

The revocation process itself (Form 2) does not require an affidavit or statutory declaration; it simply requires the applicant to set out grounds. However, the application will be heard, and the Court will need to be satisfied that grounds exist. If the applicant (employer or WorkCover Authority) makes false statements in the grounds, they may be subject to contempt or other proceedings. The Rules do not provide a penalty for frivolous or vexatious revocation applications. The OHS Act may provide some protection (e.g., costs orders), but the Rules are silent. The 28-day hearing requirement may encourage strategic applications designed to disrupt union entry, even if grounds are weak. The cost to the permit holder and the organisation of defending a revocation application, plus the compressed timeline, may impose a de facto penalty even if the application ultimately fails. The Rules do not address this.

The 2025 Rules operate as subordinate legislation under the Magistrates’ Court Act 1989 (s 16). They are also subject to the OHS Act 2004, which is the primary source of the entry permit and revocation regimes. The Rules do not amend, override, or interpret the OHS Act; they merely set out the procedural forms and one timing rule. The substantive criteria for issuing or revoking a permit remain in the OHS Act: ss 80 (Minister’s determination), 81 (qualifications), 83 (issue), 85 (revocation). Any dispute about the Act’s interpretation will be resolved under normal principles; the Rules do not assist.

The Oaths and Affirmations Act 2018 is directly incorporated by reference. Form 1 requires the affidavit or statutory declaration to be made before a person authorised under that Act. The form includes a field for the capacity of the authorised taker (e.g., a justice of the peace, a lawyer, a police officer). If the declaration is not properly witnessed, the application may be invalid. This adds a layer of procedural compliance beyond the OHS Act.

The Subordinate Legislation Act 1994 applies generally; the Rules will sunset on 21 May 2035 unless re-made (endnote 1). That interacts with the rule against perpetual legislation. The fact that the Rules are set to expire in ten years means that practitioners should monitor whether they are replaced before then.

The Magistrates’ Court General Civil Procedure Rules 2020 are expressly excluded by rule 5 for applications under rules 6 and 7. This is a critical interaction: it means that the ordinary procedural rules for civil litigation in the Magistrates’ Court do not apply. There is no automatic right to discovery, subpoenas may need to be issued under separate provisions, and the case management rules do not apply. The Court will need to rely on its inherent jurisdiction and the OHS Act to manage these applications. This could create procedural gaps: for example, there is no rule for entering a defence, no rule for summary dismissal, and no rule for default judgment. The Court may adopt the General Civil Procedure Rules by analogy, but it is not required to. Parties should expect a more informal procedure, but also one that is less predictable.

The Magistrates’ Court Act 1989, s 16, is the enabling power. That section allows the Chief Magistrate, with one or more Deputy Chief Magistrates, to make rules for the practice and procedure of the Court. The Act does not require these rules to be consistent with the OHS Act, but if there were a direct conflict, the OHS Act would prevail as the primary legislation. There is no apparent conflict.

The OHS Act Part 8 (which includes ss 79-87) defines entry permits, qualifications, and revocation grounds. The Rules do not cross-reference those sections in detail, but Form 1 requires the applicant to state they are a member of the committee of management of a registered employee organisation (consistent with s 81(1)(a)). The Rules also reference the Minister’s determination under s 80. The note in Form 2 refers to s 85(2) notice requirement. The Rules assume the user knows the OHS Act; they do not provide guidance.

The Magistrates’ Court (Occupational Health and Safety) Rules 2025 are a new instrument that revokes and replaces the 2015 Rules (S.R. No. 41/2015, as amended by S.R. No. 49/2019). The 2025 Rules have not themselves been amended at the version date (28 May 2025). The Table of Amendments in the endnotes confirms there are no amendments. The 2015 Rules are now revoked; any proceedings commenced before 28 May 2025 under the 2015 Rules may be governed by transitional provisions (though the Rules do not provide any transitional rule, so the general law on revocation of subordinate legislation applies: upon revocation, the old rules cease to have effect except as preserved by the Interpretation of Legislation Act 1984). The 2015 Rules had been amended once (2019) to update cross-references or forms, but the 2025 Rules do not carry those amendments forward; they start afresh.

The 2025 Rules were made on 21 May 2025 and commenced on 28 May 2025. The sunset date is 21 May 2035 (10 years after making). This is consistent with the Subordinate Legislation Act 1994 requirement that statutory rules sunset after 10 years unless re-made. Practitioners should be aware that these Rules will automatically expire unless the Chief Magistrate and Deputy Chief Magistrates re-make them before that date. If the Rules expire, there would be no prescribed forms for entry permit or revocation applications, which would create a legal vacuum. The Court would likely need to rely on its inherent power to accept applications in a reasonable form, but it would be a messy situation.

There is no version history beyond the current version (001). The endnotes also note style changes and interpretation provisions under the Interpretation of Legislation Act 1984, which apply to all statutory rules. The Rules are relatively short and have not attracted amendments, likely because they are purely procedural and rarely controversial.

Given that the Rules commenced only on 28 May 2025, there is no litigation history yet reported under these Rules. Any previous cases under the 2015 Rules would have involved the same subject matter (entry permit and revocation applications) but are not directly relevant to the 2025 Rules except as persuasive authority on procedural points. The 2025 Rules are new; any challenges to them would be on procedural grounds (e.g., ultra vires, failure to follow the required process). The likely pattern of litigation is that disputes arise not about the Rules themselves but about the underlying OHS Act provisions. For example, a revocation application might be contested on grounds that the permit holder did not commit the alleged misconduct, or that the Minister’s determination was exceeded. Those disputes are about the Act, not the Rules. The Rules could be litigated if a party argues that an application was not in proper form, or that the registrar failed to fix a hearing date within 28 days. A failure to comply with rule 8 could be remedied by an order compelling the registrar to list the matter, possibly via judicial review. The Court’s power to extend time under rule 9 could be challenged if exercised unreasonably (e.g., granting an extension without good cause). In the early life of the Rules, there will be no precedent; parties should anticipate that the Court will develop its own practice. The exclusion of the General Civil Procedure Rules (rule 5) may itself be litigated if a party argues that the Court should apply them by analogy. The absence of case law means uncertainty, which is a compliance risk.

No gap filler from General Civil Procedure Rules - Rule 5 expressly excludes the Magistrates’ Court General Civil Procedure Rules 2020. This is a trap for practitioners accustomed to relying on default rules for service, interrogatories, or discovery. If an employer files a revocation application and the permit holder wants to file a defence or counterclaim, there is no prescribed process. The Court may allow it, but there is no guarantee. The exclusion also means that the rules regarding joinder, pleadings, and summary dismissal do not apply. This gives the Court broad discretion but creates unpredictability.

No alternative forms - The Rules prescribe only Form 1 and Form 2. There is no form for a combined application, for an amendment of a permit, or for a challenge to a Minister’s determination. If a party needs to vary a permit or seek ancillary orders, they must look to the OHS Act and the Court’s general power. The Rules do not assist.

Mandatory disclosure of criminal history - Form 1, paragraph 5, requires disclosure of any indictable offence conviction within the previous 5 years. This is broader than just OHS-related offences. An applicant who has a drink-driving conviction (which is an indictable offence in Victoria if it is a second offence within 10 years, depending on the circumstances) may need to disclose it. Failure to do so could be perjury. The rule does not limit the disclosure to relevant offences; it catches all indictable offences. This is a significant gotcha for union officials who may have a minor criminal record. They cannot simply omit the information.

No exception for spent convictions - The Rules do not reference the Spent Convictions Act 2021 (Vic). It is unclear whether an applicant must disclose a conviction that has been spent. The form says “have you been convicted or found guilty of an indictable offence within the previous 5 years”. A spent conviction may still be considered a conviction for this purpose; the applicant should err on the side of disclosure and seek legal advice. The risk of perjury is real.

28-day hearing may be too fast - For a revocation respondent (the permit holder and the organisation), rule 8 imposes a hearing date no later than 28 days from filing. That may not be enough time to gather evidence, obtain legal representation, and prepare submissions, especially if the grounds involve complex factual allegations. The respondent can apply for an extension under rule 9, but that requires a court order, and the court may not grant it if the applicant objects. The respondent may feel pressured to settle or consent to revocation rather than defend.

No default procedure - If a respondent fails to appear at the revocation hearing, there is no rule for default judgment. The Court will likely proceed to hear evidence from the applicant. This is less protective than ordinary civil procedure, where a respondent has a right to set aside a default judgment. Practitioners should ensure they appear.

Form 2 does not require an affidavit - Form 2 for revocation only requires setting out grounds; there is no sworn statement. This means the applicant may rely on unsworn assertions. The Court may treat the grounds as mere allegations; the applicant will still need to adduce evidence at the hearing. But the lack of a sworn application reduces the applicant’s risk of perjury if grounds turn out to be false, compared to the permit holder’s application, which is sworn.

Costs - The Rules are silent on costs. The Court may have a discretion under the Magistrates’ Court Act or OHS Act, but it is unclear. A party who successfully defends a revocation application may not recover legal costs. That asymmetry could deter permit holders from contesting even weak applications.

Service still required - Form 2 has a note about s 85(2) notice, but the Rules do not specify how service must be effected. The applicant must read the OHS Act carefully. Failure to give proper notice may lead to the hearing being adjourned or the application dismissed. The 28-day timeline may be insufficient if the permit holder cannot be located quickly.

Minister’s determination cap is self-reported - The applicant must depose that issuing the permit would not exceed the cap under s 80. There is no requirement to attach the Minister’s determination or prove the cap. This relies on the honesty of the applicant. If the applicant swears falsely, they face perjury, but the Court does not verify. A later discovery that the cap was exceeded could lead to revocation of the permit.

Compliance with the 2025 Rules is largely a matter of form and timing. The following steps are necessary for each application type.

For an entry permit application (Form 1):

1. Identify the correct venue of the Magistrates’ Court (e.g., Melbourne, Dandenong). The form requires the venue name.
2. Ensure the applicant is a member of the committee of management of a registered employee organisation (or a branch committee member). The applicant must be the person applying for the permit (the organisation, through its officer), but the form asks for the applicant’s name and occupation. Read the form carefully: the applicant is the person making the application (likely a union official), and the prospective permit holder is someone else (the same person, but the form distinguishes between “I [name of applicant]” and “an entry permit to be issued to [name of prospective permit holder]”). It appears the applicant can be a different person from the permit holder (e.g., a secretary of a union applying for a permit for an organiser). The form must be completed accordingly.
3. The prospective permit holder must make an affidavit or statutory declaration in support. Use the exact wording: include paragraphs 1-5 and the appropriate paragraph 6 (affidavit or statutory declaration). Do not delete the asterisked paragraphs unless they are inapplicable. For paragraph 3, choose either “No entry permits revoked” or “X permits revoked”. For paragraph 4, choose “have” or “have not” been convicted under Part 8. For paragraph 5, choose “have” or “have not” been convicted of an indictable offence in last 5 years.
4. The declaration must be sworn or affirmed before an authorised affidavit taker or statutory declaration witness. Ensure the witness’s name, address, and capacity are filled in. The witness must be a person authorised under s 19(1) or s 30(2) of the Oaths and Affirmations Act 2018.
5. File the completed form at the Magistrates’ Court venue. There is no filing fee specified in the Rules; check the Magistrates’ Court fees regulation.
6. The Court will then consider the application. The Rules do not provide a timeline for the Court to decide; the OHS Act s 83(2) says the Court must issue the permit if satisfied of certain matters. No hearing is specified, so it may be determined on the papers.
7. After issue, keep the permit current and ensure the permit holder remains qualified. Report any changes that could affect the permit (e.g., criminal conviction) to the Court, though the Rules do not require this.

For a revocation application (Form 2):

1. The applicant must be the Victorian WorkCover Authority or an employer. Identify the correct venue.
2. Complete the form: name of applicant, name of permit holder whose permit is to be revoked.
3. Set out the grounds for revocation. The note refers to s 85(2) of the OHS Act. The grounds must be specific and factual. The form does not require the applicant to swear to the grounds, but the hearing will require evidence.
4. The applicant must give written notice of the application, setting out the grounds, to the permit holder and the registered employee organisation. The Rules do not specify how to give notice; use personal service or registered post. Keep proof of service.
5. File the application at the Magistrates’ Court. The registrar will fix a hearing date no later than 28 days after filing. The applicant should be prepared to appear on that date.
6. If additional time is needed, either party may apply to the Court for an extension of the 28-day period under rule 9. Do this promptly.
7. At the hearing, the applicant bears the onus to prove grounds. The permit holder and organisation may appear and contest. The Court may revoke the permit if satisfied under s 85.
8. After revocation, the permit holder must surrender the permit; the Rules do not state this, but the Act likely requires it.

General compliance tips:

• Always use the exact forms; do not modify wording.
• Ensure all fields are completed; do not leave blanks.
• Keep copies of all filed documents and proof of service.
• Monitor any Minister’s determination under s 80: if the cap is reached, no more permits can be issued even if the form is correct.
• For organisations: maintain records of which officials hold permits and their criminal history to avoid false statements.
• Seek legal advice if there is any doubt about disclosure of criminal convictions or the effect of spent convictions.
• If the Court grants an extension under rule 9, get the order in writing.
• Be aware that the Rules sunset in 2035; monitor for replacement rules well before that date.