Schedule 2—Area that includes the area to be avoided
See section 666 (for datum, see section 41).
1 Area that includes the area to be avoided
This Schedule applies to the area the boundary of which commences at the most easterly intersection of the coastline of the State of Victoria at mean low water by the parallel of Latitude 38° 14' 54.50" South and runs thence south‑easterly along the geodesic to the point of Latitude 38° 34' 54.49" South, Longitude
147° 44' 04.61" East:
Sch. 2 item 1(a) amended by No. 55/2010 s. 80(12).
(a) thence south‑easterly along the geodesic to the point of Latitude 38° 40' 54.48" South, Longitude 148° 06' 04.60" East; and
(b) thence easterly along the loxodrome to a point of Latitude 38° 40' 54.47" South, Longitude 148° 13' 04.59" East; and
(c) thence north‑easterly along the geodesic to the point of Latitude 38° 31' 54.46" South, Longitude 148° 26' 04.57" East; and
(d) thence north‑easterly along the geodesic to the point of Latitude 38° 18' 54.46" South, Longitude 148° 35' 04.55" East; and
(e) thence north‑westerly along the geodesic to the point of Latitude 38° 07' 54.46" South, Longitude 148° 31' 04.55" East; and
(f) thence north‑westerly along the geodesic to the point of Latitude 38° 04' 54.47" South, Longitude 148° 24' 04.55" East; and
(g) thence north‑westerly along the geodesic to the intersection of the coastline of the State of Victoria at mean low water by the parallel of Latitude 37° 57' 54.48" South; and
(h) thence along the coastline of the State of Victoria at mean low water to the point of commencement.
Schedule 3—Occupational health and safety
Part 1—Introduction
1 Objects
The objects of this Schedule are, in relation to facilities located in the offshore area—
(a) to secure the health, safety and welfare of persons at or near those facilities; and
(b) to protect persons at or near those facilities from risks to health and safety arising out of activities being conducted at those facilities; and
(c) to ensure that expert advice is available on occupational health and safety matters in relation to those facilities; and
(d) to promote an occupational environment for members of the workforce at such facilities that is adapted to their needs relating to health and safety; and
(e) to foster a consultative relationship between all relevant persons concerning the health, safety and welfare of members of the workforce at those facilities.
2 Simplified outline
(1) This clause sets out a simplified outline of this Schedule.
(2) This Schedule sets up a scheme to regulate occupational health and safety matters at or near facilities located in the offshore area.
(3) Occupational health and safety duties are imposed on the following—
(a) the operator of a facility;
(b) a person in control of a part of a facility, or of any work carried out at a facility;
(c) an employer;
(d) a manufacturer of plant, or a substance, for use at a facility;
(e) a supplier of a facility, or of any plant or substance for use at a facility;
(f) a person who erects or installs a facility, or any plant at a facility;
(g) a person at a facility.
(4) A group of members of the workforce at a facility may be established as a designated work group.
(5) The members of a designated work group may select a health and safety representative for that designated work group.
(6) The health and safety representative may exercise certain powers for the purpose of promoting or ensuring the health and safety of the group members.
Sch. 3 cl. 2(7) amended by No. 26/2021 s. 42(5).
(7) A NOPSEMA inspector may conduct an inspection—
(a) to ascertain whether a listed OHS law is being complied with; or
Sch. 3 cl. 2(8) amended by No. 74/2012 s. 38.
(8) The operator of a facility must report accidents and dangerous occurrences to NOPSEMA.
(9) This clause is intended only as a guide to readers as to the general scheme and effect of this Schedule.
3 Definitions
In this Schedule, unless the contrary intention appears—
accident includes the contraction of a disease;
associated offshore place, in relation to a facility, means any offshore place near the facility where activities (including diving activities) relating to the construction, installation, operation, maintenance or decommissioning of the facility take place, but does not include—
(a) another facility; or
(b) a supply vessel, offtake tanker, anchor handler or tugboat; or
(c) a vessel, or structure, that is declared by the regulations not to be an associated offshore place;
contract includes an arrangement or understanding;
contractor has the meaning given by clause 14;
dangerous occurrence means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition;
data includes—
(a) information in any form; and
(b) any program (or part of a program);
data held in a computer includes—
(a) data held in any removable data storage device for the time being held in a computer; and
(b) data held in a data storage device on a computer network of which the computer forms a part;
data storage device means a thing containing, or designed to contain, data for use by a computer;
designated work group means—
(a) a group of members of the workforce at a facility that is established as a designated work group under clause 25 or 26; or
(b) that group as varied in accordance with clause 27 or 28;
employee, in relation to an employer, means an employee of that employer;
employer means an employer who carries on an activity at a facility;
enter, when used in relation to a vessel, includes board;
facility means a facility as defined by clauses 6 to 10, and—
(a) includes a facility (as defined by those clauses) that is being constructed or installed; and
(b) except in the definition of associated offshore place, includes an associated offshore place in relation to a facility (as defined by those clauses);
group member, in relation to a designated work group at a facility, means a person who is—
(a) a member of the workforce at that facility; and
(b) included in that designated work group;
improvement notice means an improvement notice issued under clause 89(1);
inspection has the meaning given by clause 4;
master, in relation to a vessel, means the person having command or charge of the vessel;
member of the workforce, in relation to a facility, means an individual who does work at the facility—
(a) whether as an employee of the operator of the facility or of another person; or
(b) whether as a contractor of the operator or of another person;
offshore greenhouse gas storage operations has the same meaning as in Part 6.9 of this Act;
offshore petroleum operations has the same meaning as in Part 6.9 of this Act;
operator, in relation to a facility or proposed facility, has the meaning given by clause 11;
operator's representative at a facility means a person present at the facility in compliance with the obligations imposed on the operator by clause 12;
own includes own jointly or own in part;
plant includes any machinery, equipment or tool, or any component;
premises includes the following—
(a) a structure or building;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b);
prohibition notice means a prohibition notice issued under clause 84(1);
proposed facility means a facility proposed to be constructed, installed or operated;
recovery has the meaning given by clause 5;
registered organisation means an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth;
regulated business premises means—
(a) a facility; or
(b) premises that are—
(i) occupied by a person who is the operator of a facility; and
(ii) used, or proposed to be used, wholly or principally in connection with offshore petroleum operations or offshore greenhouse gas storage operations;
regulations means regulations made for the purposes of this Schedule;
Sch. 3 cl. 3 def. of reviewing authority amended by Nos 74/2012 s. 39, 70/2013 s. 3(Sch. 1 item 39.3), 13/2022 s. 74.
reviewing authority means the Fair Work Commission within the meaning of the Fair Work Act 2009 of the Commonwealth;
work means work offshore that is directly or indirectly related to the construction, installation, operation, maintenance or decommissioning of a facility;
work group employer, in relation to a designated work group at a facility, means an employer of one or more group members, but does not include the operator of the facility;
workforce representative means—
(a) in relation to a person who is a member of the workforce at a facility—an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, of which that person is a member, if the person is qualified to be a member of that organisation or association because of the work the person performs at the facility; or
(b) in relation to a designated work group or a proposed designated work group—an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, of which a person who is, or who is likely to be, in the work group is a member, if the person is qualified to be a member of that organisation or association because of the work the person performs, or will perform, at a facility as a member of the group;
workplace, in relation to a facility, means the whole facility or any part of the facility.
4 Meaning of inspection
(1) For the purposes of this Schedule, an inspection is an inspection conducted under Part 4 of this Schedule.
(2) An inspection may include an investigation or inquiry, but need not include a physical inspection of any facility, premises or other thing.
5 Meaning of recovery
(1) For the purposes of this Schedule, recovery, in relation to petroleum, includes all processes directly or indirectly related with its recovery.
(2) Subclause (1) does not limit the meaning of the expression recovery when used in a provision of this Act other than this Schedule.
6 Vessels or structures that are facilities—offshore petroleum operations
(1) A vessel or structure is taken to be a facility for the purposes of this Schedule while that vessel or structure—
(a) is located at a site in the offshore area; and
(b) is being used, or prepared for use, at that site—
(i) for the recovery of petroleum, for the processing of petroleum, or for the storage and offloading of petroleum, or for any combination of those activities; or
(ii) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or
(iii) for drilling or servicing a well for petroleum or doing work associated with the drilling or servicing process; or
(iv) for laying pipes for petroleum, including any manufacturing of such pipes, or for doing work on an existing pipe; or
(v) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph of this paragraph; or
(vi) for any other purpose related to offshore petroleum operations that is prescribed for the purposes of this subparagraph.
(2) Subclause (1) applies to a vessel or structure—
(a) whether it is floating or fixed; and
(b) whether or not it is capable of independent navigation.
(3) Subclause (1) has effect subject to clauses 8 and 9.
(4) A vessel or structure used for a purpose referred to in subclause (1)(b)(i) includes—
(a) any wells and associated plant and equipment by means of which petroleum processed or stored at the vessel or structure is recovered; and
(b) any pipe or system of pipes through which petroleum is conveyed from a well to the vessel or structure; and
(c) any secondary line associated with the vessel or structure.
(5) For the purposes of subclause (1), a vessel or structure that is located offshore for the purpose of laying pipes as described in subclause (1)(b)(iv) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds.
7 Vessels or structures that are facilities—offshore greenhouse gas storage operations
(1) A vessel or structure is taken to be a facility for the purposes of this Schedule while that vessel or structure—
(a) is located at a site in the offshore area; and
(b) is being used, or prepared for use, at that site—
(i) for the injection of a greenhouse gas substance into the seabed or subsoil; or
(ii) for the storage of a greenhouse gas substance in the seabed or subsoil; or
(iii) for the compression of a greenhouse gas substance; or
(iv) for the processing of a greenhouse gas substance; or
(v) for the pre‑injection storage of a greenhouse gas substance; or
(vi) for the offloading of a greenhouse gas substance; or
(vii) for the monitoring of a greenhouse gas substance stored in the seabed or subsoil; or
(viii) for any combination of activities covered by any of the preceding subparagraphs; or
(ix) for the provision of accommodation for persons working on another facility, whether connected by a walkway to that other facility or not; or
(x) for drilling or servicing a well for injecting a greenhouse gas substance into the seabed or subsoil or doing work associated with the drilling or servicing process; or
(xi) for laying pipes for conveying a greenhouse gas substance, including any manufacturing of such pipes, or for doing work on an existing pipe; or
(xii) for the erection, dismantling or decommissioning of a vessel or structure referred to in a previous subparagraph; or
(xiii) for any other purpose related to offshore greenhouse gas storage operations that is prescribed for the purposes of this subparagraph.
(2) Subclause (1) applies to a vessel or structure—
(a) whether it is floating or fixed; and
(b) whether or not it is capable of independent navigation.
(3) Subclause (1) has effect subject to clauses 8 and 9.
(4) A vessel or structure used for a purpose referred to in subclause (1)(b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) includes—
(a) any wells and associated plant and equipment by means of which a greenhouse gas substance processed or temporarily stored at the vessel or structure is injected into the seabed or subsoil; and
(b) any pipe or system of pipes through which a greenhouse gas substance is conveyed from the vessel or structure to a well; and
(c) any greenhouse gas injection line associated with the vessel or structure.
(5) For the purposes of subclause (1), a vessel or structure that is located offshore for the purpose of laying pipes as described in subclause (1)(b)(xi) is taken to be located at a site, despite the fact that the vessel or structure moves as the pipe laying process proceeds.
8 Vessels or structures that are not facilities
Despite clauses 6(1) and 7(1), a vessel or structure is taken not to be a facility for the purposes of this Schedule if the vessel or structure is—
(a) an offtake tanker; or
(b) a tug or an anchor handler; or
(c) a vessel or structure used for supplying a facility or otherwise travelling between a facility and the shore; or
(d) a vessel or structure used for any purpose such that it is declared by the regulations not to be a facility.
9 Use for a particular purpose
In determining when a vessel or structure that has the potential to be used for one or more of the purposes referred to in clause 6(1)(b) or 7(1)(b) is in fact being so used, the vessel or structure is taken—
(a) to commence to be so used only at the time when it arrives at the site where it is to be so used and any activities necessary to make it operational at that site are begun; and
(b) to cease to be so used when operations cease, and the vessel or structure has been returned either to a navigable form or to a form in which it can be towed to another place.
10 Pipelines that are facilities
(1) Each of the following is taken to be a facility for the purposes of this Schedule—
(a) a pipeline subject to a pipeline licence;
(b) if a pipeline subject to a pipeline licence conveys petroleum recovered from a well without the petroleum having passed through another facility—that pipeline, together with—
(i) that well and associated plant and equipment; and
(ii) any pipe or system of pipes through which petroleum is conveyed from that well to that pipeline;
(c) if a pipeline subject to a pipeline licence conveys a greenhouse gas substance to a well without the greenhouse gas substance having passed through another facility—that pipeline, together with—
(i) that well and associated plant and equipment; and
(ii) any pipe or system of pipes through which a greenhouse gas substance is conveyed to that well from that pipeline.
(2) In subclause (1)(b)—
facility does not include a pipeline.
11 Operator of a facility or proposed facility
Sch. 3 cl. 11(1) amended by No. 74/2012 s. 40.
(1) For the purposes of this Schedule, the operator, in relation to a facility or proposed facility, is the person who, under the regulations, is registered by NOPSEMA as the operator of that facility or proposed facility.
Sch. 3 cl. 11(2) amended by No. 74/2012 s. 40.
(2) The regulations may authorise NOPSEMA to cancel the registration of a person as the operator of a facility or proposed facility.
12 Operator must ensure presence of operator's representative
(1) The operator of a facility must ensure that, at all times when one or more individuals are present at a facility, there is also present an individual (the operator's representative at the facility) who has day‑to‑day management and control of operations at the facility.
(2) The operator of a facility must take all reasonably practicable steps to ensure that the name of the operator's representative at the facility is displayed in a prominent place at the facility.
(3) Subclause (1) does not imply that, if the operator is an individual, the operator's representative at the facility may not be, from time to time, the operator.
13 Health and safety of persons using an accommodation facility
For the avoidance of doubt, a reference in this Schedule to the occupational health and safety of a person includes a reference to the health and safety of a person using an accommodation facility provided for the accommodation of persons working on another facility.
14 Contractor
For the purposes of this Schedule, if an individual does work at a facility under a contract for services between—
(a) a person (the relevant person); and
(i) the individual; or
(ii) the employer of the individual—
the individual is taken to be a contractor of the relevant person.
Part 2—Occupational health and safety
Division 1—Duties relating to occupational health and safety
15 Duties of operator
(1) The operator of a facility must take all reasonably practicable steps to ensure that—
(a) the facility is safe and without risk to the health of any person at or near the facility; and
(b) all work and other activities carried out on the facility are carried out in a manner that is safe and without risk to the health of any person at or near the facility.
(2) The operator of a facility is taken to be subject, under subclause (1), to each of the following requirements—
(a) to take all reasonably practicable steps to provide and maintain a physical environment at the facility that is safe and without risk to health;
(b) to take all reasonably practicable steps to provide and maintain adequate facilities for the welfare of all members of the workforce at the facility;
(c) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances at the facility are safe and without risk to health;
(d) to take all reasonably practicable steps to implement and maintain systems of work at the facility that are safe and without risk to health;
(e) to take all reasonably practicable steps to implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies at the facility;
(f) to take all reasonably practicable steps to provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the health and safety of persons at the facility;
(g) to take all reasonably practicable steps to monitor the health and safety of all members of the workforce and keep records of that monitoring;
(h) to take all reasonably practicable steps to provide appropriate medical and first aid services at the facility;
(i) to take all reasonably practicable steps to develop, in consultation with—
(i) members of the workforce; and
(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in those consultations—that workforce representative—
a policy, relating to occupational health and safety, that—
(iii) will enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational health and safety of persons at the facility; and
(iv) will provide adequate mechanisms for reviewing the effectiveness of the measures; and
(v) provides for the making of an agreement that complies with subclauses (5) and (6).
(3) Subclause (2) does not limit subclause (1).
(4) The agreement referred to in subclause (2)(i)(v) must be between—
(a) on the one hand—the operator; and
(b) on the other hand—
(i) the members of the workforce; and
(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be a party to that agreement—that workforce representative.
(5) The agreement referred to in subclause (2)(i)(v) must provide appropriate mechanisms for continuing consultation between—
(a) on the one hand—the operator; and
(b) on the other hand—
(i) the members of the workforce; and
(ii) if a member of the workforce at the facility has requested a workforce representative in relation to the member to be involved in consultations on a particular occasion—that workforce representative.
(6) The agreement referred to in subclause (2)(i)(v) must provide for such other matters (if any) as are agreed between the parties to the agreement.
16 Duties of persons in control of parts of facility or particular work
(1) A person who is in control of any part of a facility, or of any particular work carried out at a facility, must take all reasonably practicable steps to ensure that—
(a) that part of the facility, or the place where that work is carried out, is safe and without risk to health; and
(b) if the person is in control of particular work—the work is carried out in a manner that is safe and without risk to health.
(2) A person who is in control of any part of a facility, or of any particular work carried out at a facility, is taken to be subject, under subclause (1), to each of the following requirements—
(a) to take all reasonably practicable steps to ensure that the physical environment at that part of the facility, or at the place where the work is carried out, is safe and without risk to health;
(b) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances at or near that part of the facility or that place, or used in that work, are safe and without risk to health;
(c) to take all reasonably practicable steps to implement and maintain systems of work at that part of the facility, or in carrying out work at that place, that are safe and without risk to health;
(d) to take all reasonably practicable steps to ensure a means of access to, and egress from, that part of the facility or that place that is safe and without risk to health;
(e) to take all reasonably practicable steps to provide all members of the workforce located at that part of the facility or engaged on that work, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.
(3) Subclause (2) does not limit subclause (1).
17 Duties of employers
(1) An employer must take all reasonably practicable steps to protect the health and safety of employees at a facility.
(2) An employer is taken to be subject, under subclause (1), to each of the following requirements—
(a) to take all reasonably practicable steps to provide and maintain a working environment that is safe for employees and without risk to their health;
(b) to take all reasonably practicable steps to ensure that any plant, equipment, materials and substances used in connection with the employees' work are safe and without risk to health;
(c) to take all reasonably practicable steps to implement and maintain systems of work that are safe and without risk to health;
(d) to take all reasonably practicable steps to provide a means of access to, and egress from, the employees' work location that is safe and without risk to health;
(e) to take all reasonably practicable steps to provide the employees, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.
(3) An employer is taken to be subject, under subclause (1), to each of the following requirements—
(a) to take all reasonably practicable steps to monitor the health and safety of employees;
(b) to take all reasonably practicable steps to keep records of that monitoring.
(4) Subclauses (2) and (3) do not limit subclause (1).
(5) A person has, in relation to a contractor of that person, the same obligations that an employer has under subclauses (1) and (2) in relation to an employee of that employer, but only in relation to—
(a) matters over which the first‑mentioned person has control; or
(b) matters over which—
(i) the first‑mentioned person would have had control apart from express provision to the contrary in a contract; and
(ii) the first‑mentioned person would, in the circumstances, usually be expected to have had control.
18 Duties of manufacturers in relation to plant and substances
(1) A manufacturer of any plant that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps—
(a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health; and
(b) to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the plant; and
(c) to make available, in connection with the use of the plant at a facility, adequate written information about—
(i) the use for which it is designed and has been tested; and
(ii) details of its design and construction; and
(iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health.
(2) A manufacturer of any substance that the manufacturer ought reasonably to expect will be used by members of the workforce at a facility must take all reasonably practicable steps—
(a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health; and
(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health and safety that may arise from the use of the substance; and
(c) to make available, in connection with the use of the substance at a facility, adequate written information concerning—
(i) the use for which it is manufactured and has been tested; and
(ii) details of its composition; and
(iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and
(iv) the first aid and medical procedures that should be followed if the substance causes injury.
(3) For the purposes of this clause, if—
(a) plant or a substance is imported into Australia by a person who is not its manufacturer; and
(b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia—
the first‑mentioned person is taken to be the manufacturer of the plant or substance.
(4) This clause does not affect the operation of any other law of this State that imposes an obligation on a manufacturer in relation to defective goods or in relation to information to be supplied in relation to goods.
19 Duties of suppliers of facilities, plant and substances
(1) A supplier of a facility, or of any plant or substance that the supplier ought reasonably to expect will be used by members of the workforce at a facility, must take all reasonably practicable steps—
(a) to ensure that, at the time of supply, the facility, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health; and
(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to health or safety that may arise from the condition of the facility, plant or substance; and
(c) to make available—
(i) in the case of a facility—to the operator of a facility; and
(ii) in the case of plant or substance—to the person to whom the plant or substance is supplied—
adequate written information, in connection with the use of the facility, plant or substance, as the case requires, about—
(iii) the condition of the facility, plant or substance at the time of supply; and
(iv) any risk to the health and safety of members of the workforce at the facility to which the condition of the facility, plant or substance may give rise unless it is properly used; and
(v) the steps that need to be taken in order to eliminate such risk; and
(vi) in the case of a substance—the first aid and medical procedures that should be followed if the condition of the substance causes injury to a member of the workforce at the facility.
(2) For the purposes of subclause (1), if a person (the ostensible supplier) supplies to a person either a facility, or any plant or substance that is to be used by members of the workforce at a facility, and the ostensible supplier—
(a) carries on the business of financing the acquisition or the use of goods by other persons; and
(b) has, in the course of that business, acquired an interest in the facility, or in the plant or substance, from another person (the actual supplier), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and
(c) has not taken possession of the facility, plant or substance, or has taken possession of the facility, plant or substance solely for the purpose of passing possession of the facility, plant or substance to the person to whom it is finally supplied—
a reference in subclause (1) to a supplier is, in relation to the facility, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier.
(3) This clause does not affect the operation of any other law of this State that imposes an obligation in relation to the sale or supply of goods or in relation to the information to be supplied in relation to goods.
20 Duties of persons erecting facilities or installing plant
(1) A person who erects or installs a facility, or erects or installs any plant at a facility, must take all reasonably practicable steps to ensure that the facility or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to health.
(2) This clause does not affect the operation of any other law of this State that imposes an obligation in relation to the erection or installation of goods or the supply of services.
21 Duties of persons in relation to occupational health and safety
(1) A person at a facility must, at all times, take all reasonably practicable steps—
(a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of that person or of any other person at or near the facility; and
(b) in respect of any obligation imposed on the operator or on any other person by or under a listed OHS law—to cooperate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation; and
(c) to use equipment that is—
(i) supplied to the person by the operator, an employer of the person or any other person having control of work at a facility (the equipment supplier); and
(ii) necessary to protect the health and safety of the person, or of any other person at or near the facility—
in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment.
(2) Despite subclause (1), the choice or manner of use of equipment of the kind referred to in subclause (1)(c)(ii) is a matter that may be, consistently with each listed OHS law—
(a) agreed on between the equipment supplier and any relevant health and safety representative; or
(b) agreed on by a health and safety committee.
(3) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for choosing equipment of a particular kind that is to be provided by the equipment supplier, action must not be taken against a person for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process.
(4) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against a person for failure to use, in the manner required by the equipment supplier, equipment of that kind that is so provided unless the manner has been determined in accordance with that process.
22 Reliance on information supplied or results of research
(1) For the purpose of the application of clause 15, 16 or 17 to the use of plant or a substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to the use of the plant or substance, to the extent that—
(a) the person ensured, so far as practicable, that its use was in accordance with the information supplied by the manufacturer or the supplier of the plant or substance relating to health and safety in its use; and
(b) it was reasonable for the person to rely on that information.
(2) Subclause (1) does not limit the generality of what constitutes reasonably practicable steps as required by clause 15, 16 or 17.
(3) For the purpose of the application of clause 18 or 19 to carrying out research, testing and examining a facility, or any plant or substance, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires, in relation to carrying out research, testing and examining the facility, plant or substance, to the extent that—
(a) the research, testing or examination has already been carried out by or on behalf of someone else; and
(b) it was reasonable for the person to rely on that research, testing or examination.
(4) Subclause (3) does not limit the generality of what constitutes reasonably practicable steps as required by clause 18 or 19.
(5) For the purpose of the application of clause 20 to the erection of a facility or the erection or installation of plant at a facility, a person on whom an obligation is imposed under that clause is regarded as having taken such reasonably practicable steps as that clause requires to the extent that—
(a) the person ensured, so far as is reasonably practicable, that the erection of the facility, or the erection or installation of the plant, was—
(i) in accordance with information supplied by the manufacturer or supplier of the facility or plant relating to its erection or its installation; and
(ii) consistent with the health and safety of persons at the facility; and
(b) it was reasonable for the person to rely on that information.
(6) Subclause (5) does not limit the generality of what constitutes reasonably practicable steps as required by clause 20.
Division 2—Regulations relating to occupational health and safety
23 Regulations relating to occupational health and safety
(1) The regulations may make provision relating to any matter affecting, or likely to affect, the occupational health and safety of persons at a facility.
(2) Subclause (1) has effect subject to this Schedule.
(3) Regulations made for the purposes of subclause (1) may make provision for any or all of the following—
(a) prohibiting or restricting the performance of all work or specified work at a facility;
(b) prohibiting or restricting the use of all plant or specified plant at a facility;
(c) prohibiting or restricting the carrying out of all processes or a specified process at a facility;
(d) prohibiting or restricting the storage or use of all substances or specified substances at a facility;
(e) specifying the form in which information required to be made available under clause 18(1)(c) or (2)(c) or 19(1)(c) is to be so made available;
(f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances at a facility;
(g) providing for—
(i) the issue, variation, renewal, transfer, suspension and cancellation of such licences; and
(ii) the conditions to which the licences may be subject;
(h) regulating the maintenance and testing of plant used at a facility;
(i) regulating the labelling or marking of substances used at a facility;
(j) regulating the transport of specified plant or specified substances for use at a facility;
(k) prohibiting the performance, at a facility, of specified activities or work except—
(i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or
(ii) under the supervision specified in the regulations;
(l) requiring specified action to avoid accidents or dangerous occurrences;
(m) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences;
(n) providing for the employment at a facility of persons to perform specified duties relating to the maintenance of occupational health and safety at the facility;
(o) regulating the provision and use, at a facility, of protective clothing and equipment, safety equipment and rescue equipment;
(p) providing for monitoring the health of members of the workforce at a facility and the conditions at the facility;
(q) requiring employers to keep records of matters related to the occupational health and safety of employees;
(r) providing for the provision of first aid equipment and facilities at facilities.
(4) Subclause (3) does not limit subclause (1).
Part 3—Workplace arrangements
24 Simplified outline
(1) This clause sets out a simplified outline of this Part.
(2) A group of members of the workforce at a facility may be established as a designated work group.
(3) The members of a designated work group may select a health and safety representative for that designated work group.
(4) The health and safety representative may exercise certain powers for the purpose of promoting or ensuring the health and safety of the group members.
(5) A health and safety committee may be established in relation to the members of the workforce at a facility.
(6) The main function of a health and safety committee is to assist the operator in relation to occupational health and safety matters.
(7) This clause is intended only as a guide to readers as to the general scheme and effect of this Part.
Division 2—Designated work groups
Subdivision 1—Establishment of designated work groups
25 Establishment of designated work groups by request
(1) A request to the operator of a facility to enter into consultations to establish designated work groups in relation to the members of the workforce at the facility may be made by—
(a) any member of the workforce; or
(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator—that workforce representative.
(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with—
(a) if any member of the workforce made a request to establish designated work groups—
(i) that member of the workforce; and
(ii) if that member requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and
(iii) each employer (if any) of members of the workforce; and
(b) if a workforce representative made a request to establish designated work groups—
(i) if a member of the workforce requests that the operator enter into consultations with that workforce representative—that workforce representative; and
(ii) each employer of members of the workforce.
(3) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.
26 Establishment of designated work groups at initiative of operator
(1) If, at any time, the operator of a facility considers that designated work groups should be established, the operator must enter into consultations with—
(a) all members of the workforce; and
(b) if a member of the workforce requests that the operator enter into consultations with a workforce representative in relation to the member—that workforce representative; and
(c) each employer (if any) of members of the workforce.
(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.
Subdivision 2—Variation of designated work groups
27 Variation of designated work groups by request
(1) A request to the operator of a facility to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce at the facility may be made by—
(a) any member of the workforce; or
(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator—that workforce representative.
(2) The operator of a facility must, within 14 days after receiving a request under subclause (1), enter into consultations with—
(a) if any member of the workforce made a request to vary designated work groups—
(i) that member of the workforce; and
(ii) the health and safety representative of each designated work group affected by the proposed variation; and
(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation; and
(b) if a workforce representative made a request to vary designated work groups—
(i) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group—that workforce representative; and
(ii) the health and safety representative of each designated work group affected by the proposed variation; and
(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation.
(a) consultations take place about the variation of designated work groups that have already been established; and
(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified—
then, within 14 days after the completion of the consultations, the operator must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.
28 Variation of designated work groups at initiative of operator
(1) If the operator of a facility believes the designated work groups should be varied, the operator may, at any time, enter into consultations about the variations with—
(a) the health and safety representative of each of the designated work groups affected by the proposed variation; and
(b) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with a workforce representative in relation to the group—that workforce representative; and
(c) each work group employer (if any) in relation to each designated work group affected by the proposed variation.
(a) consultations take place about the variation of designated work groups that have already been established; and
(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified—
then, within 14 days after the completion of the consultations, the operator must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.
Subdivision 3—General
29 Referral of disagreement to reviewing authority
(1) If, in the course of consultations under clause 25, 26, 27 or 28, there is a disagreement between any of the parties to the consultation about the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority.
(2) If the matter of disagreement is referred to the reviewing authority, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority.
30 Manner of grouping members of the workforce
(1) Consultations about the establishment or variation of a designated work group must be directed principally towards the determination of the manner of grouping members of the workforce—
(a) that best and most conveniently enables their interests relating to occupational health and safety to be represented and safeguarded; and
(b) that best takes account of the need for any health and safety representative selected for that designated work group to be accessible to each group member.
(2) The parties to the consultations must have regard, in particular, to—
(a) the number of members of the workforce at the facility to which the consultation relates; and
(b) the nature of each type of work performed by such members; and
(c) the number and grouping of such members who perform the same or similar types of work; and
(d) the workplaces where each type of work is performed; and
(e) the nature of any risks to health and safety at each such workplace; and
(f) any overtime or shift working arrangement at the facility.
(3) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce at a facility is in a designated work group.
(4) All the members of the workforce at a facility may be in one designated work group.
Division 3—Health and safety representatives
Subdivision 1—Selection of health and safety representatives
31 Selection of health and safety representatives
(1) One health and safety representative may be selected for each designated work group.
(2) A person is not eligible for selection as the health and safety representative for a designated work group unless the person is a member of the workforce included in the group.
(3) A person is taken to have been selected as the health and safety representative for a designated work group if—
(a) all the members of the workforce in the group unanimously agree to the selection; or
(b) the person is elected as the health and safety representative of the group in accordance with clause 32.
32 Election of health and safety representatives
(a) there is a vacancy in the office of health and safety representative for a designated work group; and
(b) within a reasonable time after the vacancy occurs, a person has not been selected under clause 31(3)(a)—
the operator of the facility must invite nominations from all group members for election as the health and safety representative of the group.
Sch. 3 cl. 32(2) amended by No. 74/2012 s. 40.
(2) If the office of health and safety representative is vacant and the operator has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, NOPSEMA may direct the operator to do so.
(3) If there is more than one candidate for election at the close of the nomination period, the operator must conduct, or arrange for the conduct of, an election at the operator's expense.
(4) An election conducted or arranged to be conducted under subclause (3) must be conducted in accordance with regulations made for the purposes of this subclause if this is requested by the lesser of—
(a) 100 members of the workforce normally in the designated work group; or
(b) a majority of the members of the workforce normally in the designated work group.
(5) If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected.
(6) A person cannot be a candidate in the election if he or she is disqualified under clause 38.
(7) All the members of the workforce in the designated work group are entitled to vote in the election.
Sch. 3 cl. 32(8) amended by No. 74/2012 s. 40.
(8) An operator conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by NOPSEMA.
33 List of health and safety representatives
The operator of a facility must—
(a) prepare and keep up to date a list of all the health and safety representatives of designated work groups comprising members of the workforce performing work at the facility; and
(b) ensure that the list is available for inspection, at all reasonable times, by—
(i) the members of the workforce at the facility; and
Sch. 3 cl. 33(b)(ii) amended by No. 26/2021 s. 42(6).
(ii) NOPSEMA inspectors.
34 Members of designated work group must be notified of selection etc. of health and safety representative
The operator of a facility must—
(a) notify members of a designated work group in relation to the facility of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and
(b) notify those members of the name of any person selected (whether under clause 31(3)(a) or (b)) as health and safety representative for the designated work group within a reasonable time after the selection is made.
35 Term of office
(1) A health and safety representative for a designated work group holds office—
(a) if, in consultations that took place under clause 25, 26, 27 or 28, the parties to the consultations agreed to the period for which the health and safety representative for the group was to hold office—for such a period; or
(b) in any other case—for 2 years—
beginning at the start of the day on which he or she was selected.
(2) However, the health and safety representative is eligible to be selected for further terms of office.
(3) Subclauses (1) and (2) have effect subject to this Part.
36 Training of health and safety representatives
Sch. 3 cl. 36(1) amended by No. 74/2012 s. 40.
(1) A health and safety representative for a designated work group must undertake a course of training relating to occupational health and safety that is accredited by NOPSEMA for the purposes of this clause.
(2) The operator of the facility concerned must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.
(3) If a person other than the operator is the employer of the representative, that person must permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to undertake the training.
37 Resignation etc. of health and safety representatives
(1) A person ceases to be the health and safety representative for the designated work group if—
(a) the person resigns as the health and safety representative; or
(b) the person ceases to be a group member of that designated work group; or
(c) the person's term of office expires without the person having been selected, under clause 31, to be the health and safety representative for the designated work group for a further term; or
(d) the person is disqualified under clause 38.
(2) A person may resign as the health and safety representative for a designated work group by written notice delivered to the operator and to each work group employer.
(3) If a person resigns as the health and safety representative for a designated work group, the person must notify the resignation to the group members.
(4) If a person has ceased to be the health and safety representative for a designated work group because of subclause (1)(b), the person must notify in writing—
(a) the group members; and
(b) the operator and each work group employer—
that the person has ceased to be the health and safety representative for that designated work group.
38 Disqualification of health and safety representatives
Sch. 3 cl. 38(1) amended by No. 74/2012 s. 41(1).
(1) An application for the disqualification of a health and safety representative for a designated work group may be made to NOPSEMA by—
(a) the operator; or
(b) a work group employer; or
(c) at the request of a group member of the designated work group—a workforce representative in relation to the designated work group.
(2) An application under subclause (1) may be made on either or both of the following grounds—
(a) that action taken by the health and safety representative in the exercise or purported exercise of a power under clause 40(1) or any other provision of this Schedule was taken—
(i) with the intention of causing harm to the operator or work group employer or to an undertaking of the operator or work group employer; or
(ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the health and safety representative;
(b) that the health and safety representative has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a health and safety representative, information acquired from the operator or work group employer.
Sch. 3 cl. 38(3) amended by No. 74/2012 s. 41(2)(a).
(3) If, on an application under subclause (1), NOPSEMA is satisfied that the health and safety representative has acted in a manner referred to in subclause (2), NOPSEMA may, after having regard to—
(a) the harm (if any) that was caused to the operator or work group employer or to an undertaking of the operator or work group employer as a result of the action of the representative; and
(b) the past record of the representative in exercising the powers of a health and safety representative; and
(c) the effect (if any) on the public interest of the action of the representative; and
Sch. 3 cl. 38(3)(d) amended by No. 74/2012 s. 41(2)(b).
(d) such other matters as NOPSEMA thinks relevant—
disqualify the representative, for a specified period not exceeding 5 years, from being a health and safety representative for any designated work group.
39 Deputy health and safety representatives
(1) One deputy health and safety representative may be selected for each designated work group for which a health and safety representative has been selected.
(2) A deputy health and safety representative is to be selected in the same way as a health and safety representative under clause 31.
(3) If the health and safety representative for a designated work group—
(a) ceases to be the health and safety representative; or
(b) is unable (because of absence or for any other reason) to exercise the powers of a health and safety representative—
(c) the powers may be exercised by the deputy health and safety representative (if any) for the group; and
(d) this Schedule (other than this clause) applies in relation to the deputy health and safety representative accordingly.
Subdivision 2—Powers of health and safety representatives
40 Powers of health and safety representatives
(1) A health and safety representative for a designated work group in relation to a facility may, for the purpose of promoting or ensuring the health and safety at a workplace of the group members—
(a) do any or all of the following—
(i) inspect the whole or any part of the workplace if there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or if there is an immediate threat of such an accident or dangerous occurrence;
(ii) inspect the whole or any part of the workplace if the health and safety representative has given reasonable notice of the inspection to the operator's representative at the facility and to any other person having immediate control of the workplace;
Sch. 3 cl. 40(1)
(a)(iii) amended by Nos 74/2012 s. 42, 26/2021 s. 42(7).
(iii) make a request to a NOPSEMA inspector or to NOPSEMA that an inspection be conducted at the workplace;
Sch. 3 cl. 40(1)(a)(iv) amended by No. 26/2021 s. 42(8).
(iv) accompany a NOPSEMA inspector during any inspection at the workplace by the NOPSEMA inspector (whether or not the inspection is being conducted as a result of a request made by the health and safety representative);
(v) if there is no health and safety committee in relation to the members of the workforce at the facility—represent group members in consultations with the operator and any work group employer about the development, implementation and review of measures to ensure the health and safety of those members at the workplace;
(vi) if a health and safety committee has been established in relation to the members of the workforce at the facility—examine any of the records of that committee; and
(b) investigate complaints made by any group member to the health and safety representative about the health and safety of any of the members of the workforce (whether in the group or not); and
(c) with the consent of a group member, be present at any interview about health and safety at work between that member and—
Sch. 3 cl. 40(1)(c)(i) amended by No. 26/2021 s. 42(9).
(i) a NOPSEMA inspector; or
(ii) the operator or a person representing the operator; or
(iii) a work group employer or a person representing that employer; and
(d) obtain access to any information under the control of the operator or any work group employer—
(i) relating to risks to the health and safety of any group member; and
(ii) relating to the health and safety of any group member; and
(e) issue provisional improvement notices in accordance with clause 44.
(2) Subclause (1)(d)(ii) has effect subject to clause 42.
41 Assistance by consultant
(1) A health and safety representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.
Sch. 3 cl. 41(2) amended by No. 74/2012 s. 42.
(2) A health and safety representative for a designated work group may—
(a) be assisted by a consultant at a workplace at which work is performed; or
(b) provide to a consultant information that has been provided to the health and safety representative by an operator or work group employer under clause 40(1)(d)—
only if the operator or NOPSEMA has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.
(3) Neither the operator nor any workplace employer becomes, because of the agreement under subclause (2) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant's activities.
(4) If a health and safety representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, about health and safety at work, between a group member and—
Sch. 3 cl. 41(4)(a) amended by No. 26/2021 s. 42(10).
(a) a NOPSEMA inspector; or
(b) the operator or any work group employer or a person representing the operator or that employer—
if, and only if, the group member consents to the presence of the consultant.
42 Information
(1) Neither—
(a) the health and safety representative; nor
(b) if the health and safety representative is assisted by a consultant—the consultant—
is entitled, under clause 40(1)(d)(ii), to have access to information in relation to which a group member is entitled to claim, and does claim, legal professional privilege.
(2) Neither—
(a) the health and safety representative; nor
(b) if the health and safety representative is assisted by a consultant—the consultant—
is entitled, under clause 40(1)(d)(ii), to have access to information of a confidential medical nature relating to a person who is or was a group member unless—
(c) the person has delivered to the operator or any work group employer a written authority permitting the health and safety representative, or the health and safety representative and the consultant, as the case requires, to have access to the information; or
(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.
43 Obligations and liabilities of health and safety representatives
This Schedule does not—
(a) impose an obligation on a person to exercise any power conferred on the person because the person is a health and safety representative; or
(b) render a person liable in civil proceedings because of—
(i) a failure to exercise such a power; or
(ii) the way such a power was exercised.
44 Provisional improvement notices
(a) a health and safety representative for a designated work group believes, on reasonable grounds, that a person—
(i) is contravening a provision of a listed OHS law; or
(ii) has contravened a provision of a listed OHS law and is likely to contravene that provision again; and
(b) the contravention affects or may affect one or more group members—
the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.
(2) If, in the health and safety representative's opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to any or all of the persons (each of whom is in this clause called a responsible person) responsible for the contravention.
(3) If a responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator's representative at the facility.
(4) If it is not practicable to issue the notice to a responsible person (other than the operator or the supervisor) by giving it to that responsible person—
(a) the notice may be issued to that responsible person by giving it to the person who for the time being is, or may reasonably be presumed to be, on behalf of the responsible person, in charge of the activity to which the notice relates; and
(b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards.
(5) The notice must—
(a) specify the contravention that, in the health and safety representative's opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and
(b) specify a period that—
(i) is not less than 7 days beginning on the day after the notice is issued; and
(ii) is, in the representative's opinion, reasonable—
within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.
(6) The notice may specify action that the responsible person is to take during the period specified in the notice.
(7) If, in the health and safety representative's opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice.
(8) On issuing the notice, the health and safety representative must give a copy of the notice to—
(a) if the operator is not a responsible person—the operator; and
(b) each work group employer other than a work group employer who is a responsible person; and
(c) if the supervisor is not a responsible person—the supervisor; and
(d) if the notice relates to any plant, substance or thing that is owned by a person other than a responsible person or a person to whom a copy of the notice is given under paragraph (a), (b) or (c)—that owner.
45 Effect of provisional improvement notice
Sch. 3 cl. 45(1) amended by Nos 74/2012 s. 42, 26/2021 s. 42(11).
(1) Within 7 days after a notice is issued under clause 44—
(a) the responsible person; or
(b) any other person to whom a copy of the notice has been given under clause 44(8)—
may make a request to NOPSEMA or to a NOPSEMA inspector that an inspection of the matter be conducted.
Sch. 3 cl. 45(2) amended by No. 26/2021 s. 42(11).
(2) Upon the request being made, the operation of the notice is suspended pending the determination of the matter by a NOPSEMA inspector.
Sch. 3 cl. 45(3) amended by No. 26/2021 s. 42(12).
(3) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the disagreement, and the NOPSEMA inspector conducting the inspection must—
(a) confirm, vary or cancel the notice and notify the responsible person, and any person to whom a copy of the notice has been given under clause 44(8), accordingly; and
Sch. 3 cl. 45(3)(b) amended by No. 26/2021 s. 42(12).
(b) make such decisions, and exercise such powers, under Part 4 of this Schedule, as the NOPSEMA inspector considers necessary in relation to the work.
Sch. 3 cl. 45(4) amended by No. 26/2021 s. 42(13).
(4) If the NOPSEMA inspector varies a notice, the notice as so varied has effect—
(a) so far as the notice concerns obligations imposed on the responsible person that are unaffected by the variation—as if the notice as so varied resumed effect on the day of the variation; and
(b) so far as the notice concerns new obligations imposed by virtue of the variation—as if the notice as so varied were a new notice issued on the day of the variation.
(5) If the notice is issued to a responsible person, the responsible person must—
(a) notify each group member who is affected by the notice of the fact of the issue of the notice; and
(b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed.
(6) The notice ceases to have effect if—
Sch. 3 cl. 45(6)(a) amended by No. 26/2021 s. 42(14).
(a) it is cancelled by a NOPSEMA inspector or by the health and safety representative; or
(b) the responsible person—
(i) takes such action (if any) as is specified in the notice; or
(ii) if no action is so specified—takes the action necessary to prevent the further contravention, or likely contravention, concerned.
(7) The responsible person—
(a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and
(b) must take reasonable steps to inform the health and safety representative who issued the notice of the action taken to comply with the notice.
Sch. 3 cl. 45(8) amended by No. 26/2021 s. 42(15).
(8) For the purposes of clause 95, if the NOPSEMA inspector confirms or varies the notice, the NOPSEMA inspector is taken to have decided, under clause 89, to issue an improvement notice in those terms.
Subdivision 3—Duties of the operator and other employers in relation to health and safety representatives
46 Duties of the operator and other employers in relation to health and safety representatives
(1) The operator of a facility, in relation to which a designated work group having a health and safety representative has been established, must—
(a) on being requested to do so by the representative, consult with the representative on the implementation of changes at any workplace at which some or all of the group members perform work, where the changes may affect their health and safety; and
(b) in relation to a workplace at which some or all of the group members perform work—
Sch. 3 cl. 46(b)(i) amended by No. 26/2021 s. 42(16).
(i) permit the representative to make such inspection of the workplace as the representative is entitled to make in accordance with clause 40(1)(a)(i) and to accompany a NOPSEMA inspector during an inspection at the workplace by the NOPSEMA inspector; and
(ii) if there is no health and safety committee in relation to the members of the workforce—on being requested to do so by the representative, consult with the representative about the development, implementation and review of measures to ensure the health and safety of group members; and
(c) permit the representative to be present at any interview at which the representative is entitled to be present under clause 40(1)(c); and
(d) provide to the representative access to any information to which the representative is entitled to obtain access under clause 40(1)(d)(i) or (ii) and to which access has been requested; and
(e) permit the representative to take such time off work, without loss of remuneration or other entitlements, as is necessary to exercise the powers of a health and safety representative; and
(f) provide the representative with access to such facilities as are—
(i) prescribed for the purposes of this paragraph; or
(ii) necessary for the purposes of exercising the powers of a health and safety representative.
(2) Subclause (1)(d) has effect subject to subclauses (3) and (4).
(3) The operator must not permit a health and safety representative in relation to a designated work group to have access to information that—
(a) is of a confidential medical nature under the control of the operator; and
(b) relates to a person who is or was a group member—
unless—
(c) the person has delivered to the employer a written authority permitting the representative to have access to the information; or
(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.
(4) The operator is not required to give a health and safety representative access to any information in relation to which the operator is entitled to claim, and does claim, legal professional privilege.
(5) The duties imposed by this clause on the operator in relation to the health and safety representative for a designated work group apply equally, to the extent that the matters to which the duties relate are within the control of a work group employer or of a supervisor of particular work, to that employer and to that supervisor.
Division 4—Health and safety committees
47 Health and safety committees
(1) A health and safety committee must be established in relation to the members of the workforce at a facility if—
(a) the number of those members normally present at the facility is not less than 50 (whether or not those members are all at work at the facility at the same time); and
(b) the members of the workforce are included in one or more designated work groups; and
(c) the operator is requested to establish the committee by the health and safety representative for the designated work group or for one of the designated work groups.
(2) The health and safety committee consists of—
(a) the number of members specified in an agreement reached between the operator and the members of the workforce; or
(b) if there is no such agreement—an equal number of—
(i) members, chosen by the members of the workforce, to represent the interests of members of the workforce; and
(ii) members, chosen by the operator, to represent the interests of the operator and the employers (other than the operator) of members of the workforce.
(3) The agreement referred to in subclause (2)(a) may—
(a) specify the persons who are to be members to represent the interests of the operator and employers (other than the operator) of members of the workforce; and
(b) provide for the way in which persons who are to be members to represent the interests of members of the workforce are to be chosen.
(4) If regulations made for the purposes of this clause specify procedures for the selection of persons as members of health and safety committees, to represent the interests of members of the workforce, an agreement referred to in subclause (2)(a) must not provide for such members to be chosen in a way inconsistent with the regulations.
(5) A health and safety committee must hold meetings at least once every 3 months.
(6) The procedure at meetings of a health and safety committee must, except to the extent provided for by the regulations, be the procedure agreed upon by the committee.
(7) A health and safety committee must cause minutes of its meetings to be kept, and must retain those minutes for a period of not less than 3 years.
(8) This clause does not prevent an operator from establishing, in consultation with members of the workforce or any other persons, committees concerned with occupational health and safety in relation to undertakings carried on by the operator.
48 Functions of health and safety committees
(1) A health and safety committee has the following functions—
(a) to assist the operator of the facility concerned—
(i) to develop and implement measures designed to protect; and
(ii) to review and update measures used to protect—
the health and safety at work of members of the workforce;
(b) to facilitate cooperation between the operator of the facility, employers (other than the operator) of members of the workforce, and members of the workforce, in relation to occupational health and safety matters;
(c) to assist the operator to disseminate among members of the workforce, in appropriate languages, information relating to health and safety at work;
(d) such functions as are prescribed;
(e) such other functions as are agreed upon between the operator and the health and safety committee.
(2) A health and safety committee has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
(3) This Schedule does not—
(a) impose an obligation on a person to do any act, because the person is a member of a health and safety committee, in connection with the performance of a function conferred on the committee; or
(b) render such a person liable in civil proceedings because of—
(i) a failure to do such an act; or
(ii) the manner in which such an act was done.
49 Duties of the operator and other employers in relation to health and safety committees
(1) If there is a health and safety committee, the operator and any employer (other than the operator) of a member of the workforce must—
(a) make available to the committee any information possessed by the operator or that employer relating to risks to health and safety to members of the workforce; and
(b) permit any member of the committee who is a member of the workforce to take such time off work, without loss of remuneration or other entitlements, as is necessary for the member adequately to participate in the performance by the committee of its functions.
(2) Subclause (1)(a) has effect subject to subclauses (3) and (4).
(3) The operator or any employer (other than the operator) of a member of the workforce must not make available to a health and safety committee information of a confidential nature relating to a person who is or was a member of the workforce, unless—
(a) the person has authorised the information to be made available to the committee; or
(b) the information is in a form that does not identify the person or enable the identity of the person to be discovered.
(4) The operator or any employer (other than the operator) of a member of the workforce is not required to make available to a health and safety committee any information in relation to which the operator or employer is entitled to claim, and does claim, legal professional privilege.
Division 5—Emergency procedures
50 Action by health and safety representatives
(1) If a health and safety representative for a designated work group has reasonable cause to believe that there is an imminent and serious danger to the health or safety of any person at or near the facility unless a group member or group members cease to perform particular work, the representative must—
(a) inform a person (a supervisor) supervising the group member or group members in the performance of the work of the danger; or
(b) if no supervisor can be contacted immediately—
(i) direct the group member or group members to cease, in a safe manner, to perform the work; and
(ii) as soon as practicable, inform a supervisor that the direction has been given.
(2) If a supervisor is informed under subclause (1)(a) of a danger to the health or safety of any person at or near the facility, the supervisor must take such action as he or she thinks appropriate to remove that danger, and any such action may include directing a group member or group members to cease, in a safe manner, to perform the work.
(a) a health and safety representative has informed a supervisor under subclause (1)(a) of a danger; and
(b) the representative has reasonable cause to believe that, despite any action taken by the supervisor in accordance with subclause (2), there continues to be an imminent and serious danger to the health or safety of any person at or near the facility unless the group member or group members cease to perform particular work—
the representative must—
(c) direct the group member or group members to cease, in a safe manner, to perform the work; and
(d) as soon as practicable, inform the supervisor that the direction has been given.
Sch. 3 cl. 50(4) amended by Nos 74/2012 s. 42, 26/2021 s. 42(17).
(a) a health and safety representative gives a direction under subclause (1)(b), but is unable to agree with a supervisor whom the representative has informed under that paragraph that there is a need for a direction under that paragraph; or
(b) a health and safety representative gives a direction under subclause (3)(c)—
the representative or the supervisor may make a request to NOPSEMA or to a NOPSEMA inspector that an inspection be conducted of the work that is the subject of the direction.
Sch. 3 cl. 50(5) amended by No. 26/2021 s. 42(18).
(5) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the direction, and the NOPSEMA inspector conducting the inspection must make such decisions, and exercise such powers, under Part 4 of this Schedule as the NOPSEMA inspector considers necessary in relation to the work.
Sch. 3 cl. 50(6) amended by Nos 74/2012 s. 42, 26/2021 s. 42(19).
(6) This clause does not limit the power of a health and safety representative under clause 40(1)(a)(iii) to make a request to a NOPSEMA inspector or to NOPSEMA that an inspection be conducted at the workplace.
51 Direction to perform other work
(1) This clause applies if—
(a) a group member who is an employee has ceased to perform work, in accordance with the direction of a health and safety representative under clause 50(1)(b) or (3)(c); and
(b) the cessation of work does not continue after—
(i) the health and safety representative has agreed with a person supervising work at the workplace where the work was being performed that the cessation of work was not, or is no longer, necessary; or
Sch. 3 cl. 51(1)(b)(ii) amended by No. 26/2021 s. 42(20).
(ii) a NOPSEMA inspector has, under clause 50(5), made a decision to the effect that the employee should perform the work.
(2) The employer may direct the employee to perform suitable alternative work, and the employee is to be taken, for all purposes, to be required to perform that other work under the terms and conditions of the employee's employment.
Division 6—Exemptions
52 Exemptions
Sch. 3 cl. 52(1) amended by No. 74/2012 s. 43.
(1) NOPSEMA may, in accordance with the regulations, make a written order exempting a specified person from any or all of the provisions of this Part (other than this clause).
Sch. 3 cl. 52(2) amended by No. 74/2012 s. 43.
(2) NOPSEMA must not make an order under subclause (1) unless it is satisfied on reasonable grounds that it is impracticable for the person to comply with the provision or provisions.
Part 4—Inspections
53 Simplified outline
(1) This clause sets out a simplified outline of this Part.
Sch. 3 cl. 53(2) amended by No. 26/2021 s. 42(21).
(2) A NOPSEMA inspector may conduct an inspection—
(a) to ascertain whether a listed OHS law is being complied with; or
Sch. 3 cl. 53(3) amended by No. 26/2021 s. 42(21).
(3) A NOPSEMA inspector may issue a prohibition notice to the operator of a facility in order to remove an immediate threat to the health or safety of any person.
Sch. 3 cl. 53(4) amended by No. 26/2021 s. 42(21).
(4) A NOPSEMA inspector may issue an improvement notice specifying action that is to be taken to prevent contraventions of a listed OHS law.
Sch. 3 cl. 53(5) amended by Nos 74/2012 s. 44, 26/2021 s. 42(21).
(5) A NOPSEMA inspector must prepare a report about an inspection and give the report to NOPSEMA.
(6) This clause is intended only as a guide to readers as to the general scheme and effect of this Part.
Sch. 3 cl. 54 (Heading) amended by No. 26/2021 s. 42(22).
54 Powers, functions and duties of NOPSEMA inspectors
Sch. 3 cl. 54(1) amended by No. 26/2021 s. 42(23).
(1) A NOPSEMA inspector has the powers, functions and duties conferred or imposed by a listed OHS law.
Sch. 3 cl. 54(2) amended by Nos 74/2012 s. 45, 26/2021 s. 42(24).
(2) NOPSEMA may give written directions specifying the manner in which, and the conditions subject to which, powers conferred on NOPSEMA inspectors by a listed OHS law are to be exercised. If it does so, the powers of NOPSEMA inspectors must be exercised in accordance with those directions.
Sch. 3 cl. 54(3) amended by Nos 74/2012 s. 45, 26/2021 s. 42(25).
(3) NOPSEMA may, by written notice, impose restrictions, not inconsistent with any direction in force under subclause (2), on the powers that are conferred on a particular NOPSEMA inspector by a listed OHS law. If it does so, the powers of the NOPSEMA inspector are taken to have been restricted accordingly.
Division 2—Inspections
55 Inspections
Sch. 3 cl. 55(1) amended by No. 26/2021 s. 42(26).
(1) A NOPSEMA inspector may, at any time, conduct an inspection—
(a) to ascertain whether the requirements of, or any requirements properly made under, a listed OHS law are being complied with; or
Sch. 3 cl. 55(2) amended by Nos 74/2012 s. 46, 26/2021 s. 42(27).
(2) NOPSEMA may direct a NOPSEMA inspector to conduct an inspection—
(a) to ascertain whether the requirements of, or any requirements properly made under, a listed OHS law are being complied with; or
(c) concerning an accident or dangerous occurrence that has happened at or near a facility—
and the NOPSEMA inspector must, unless NOPSEMA revokes the direction, conduct an inspection accordingly.
Sch. 3 Pt 4 Div. 3 (Heading) amended by No. 26/2021 s. 42(28).
Division 3—Powers of NOPSEMA inspectors in relation to the conduct of inspections
Subdivision 1—General powers of entry and search
56 Powers of entry and search—facilities
Sch. 3 cl. 56(1) amended by No. 26/2021 s. 42(29)(a).
(1) A NOPSEMA inspector may, for the purposes of an inspection, at any reasonable time during the day or night—
(a) enter the facility to which the inspection relates and do any or all of the following—
(i) search the facility;
(ii) inspect, examine, take measurements of, or conduct tests concerning, any workplace at the facility or any plant, substance or thing at the facility;
(iii) take photographs of, make video recordings of, or make sketches of, any workplace at the facility or any plant, substance or thing at the facility;
Sch. 3 cl. 56(1)(a)(iv) amended by No. 26/2021 s. 42(29)(b).
(iv) inspect, take extracts from, or make copies of, any documents at the facility that the NOPSEMA inspector has reasonable grounds to believe relate, or are likely to relate, to the subject matter of the inspection; and
(b) inspect the seabed and subsoil in the vicinity of the facility to which the inspection relates.
Sch. 3 cl. 56(2) amended by No. 26/2021 s. 42(30)(a).
(2) Immediately on entering a facility for the purposes of an inspection, a NOPSEMA inspector must take reasonable steps to notify the purpose of entering the facility to—
(a) the operator's representative at the facility; and
(b) if there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection—that representative—
and must, on being requested to do so by the person referred to in paragraph (a) or (b), produce for inspection by that person—
Sch. 3 cl. 56(2)(c) amended by No. 26/2021 s. 42(30)(b).
(c) the NOPSEMA inspector's identity card; and
Sch. 3 cl. 56(2)(d) amended by No. 74/2012 s. 47.
(d) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and
Sch. 3 cl. 56(2)(e) amended by No. 26/2021 s. 42(30)(c).
(e) a copy of the restrictions (if any) imposed on the powers of the NOPSEMA inspector under clause 54(3).
Sch. 3 cl. 56(3) amended by No. 26/2021 s. 42(31).
(3) If there is a health and safety representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection, the NOPSEMA inspector must give the health and safety representative a reasonable opportunity to consult on the matter the subject of the inspection.
57 Powers of entry and search—regulated business premises (other than facilities)
Sch. 3 cl. 57(1) amended by No. 26/2021 s. 42(32)(a).
(1) A NOPSEMA inspector may, for the purposes of an inspection—
Sch. 3 cl. 57(1)(a) amended by No. 26/2021 s. 42(32)(b).
(a) at any reasonable time, enter any regulated business premises (other than a facility) if the NOPSEMA inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a facility that is, or to facility operations that are, the subject of the inspection; and
(b) search for, inspect, take extracts from, or make copies of, any such documents at those premises.
Sch. 3 cl. 57(2) amended by No. 26/2021 s. 42(33)(a).
(2) Immediately on entering premises referred to in subclause (1), a NOPSEMA inspector must take reasonable steps to notify the purpose of the entry to the occupier of those premises, and must, on being requested to do so by the occupier, produce for inspection by the occupier—
Sch. 3 cl. 57(2)(a) amended by No. 26/2021 s. 42(33)(b).
(a) the NOPSEMA inspector's identity card; and
Sch. 3 cl. 57(2)(b) amended by No. 74/2012 s. 47.
(b) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and
Sch. 3 cl. 57(2)(c) amended by No. 26/2021 s. 42(33)(c).
(c) a copy of the restrictions (if any) imposed on the powers of the NOPSEMA inspector under clause 54(3).
58 Powers of entry and search—premises (other than regulated business premises)
Sch. 3 cl. 58(1) amended by No. 26/2021 s. 42(34)(a).
(1) A NOPSEMA inspector may, for the purposes of an inspection—
Sch. 3 cl. 58(1)(a) amended by No. 26/2021 s. 42(34)(b).
(a) enter any premises (other than regulated business premises) if the NOPSEMA inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a facility that is, or to facility operations that are, the subject of the inspection; and
(b) search for, inspect, take extracts from, or make copies of, any such documents at those premises.
Sch. 3 cl. 58(2) amended by No. 26/2021 s. 42(35).
(2) A NOPSEMA inspector may exercise the powers referred to in subclause (1) to enter premises only—
(a) if the premises are not a residence—
(i) in accordance with a warrant under clause 59; or
(ii) with the consent of the occupier of the premises; or
(b) if the premises are a residence—with the consent of the occupier of the premises.
Sch. 3 cl. 58(3) amended by No. 26/2021 s. 42(36)(a).
(3) Immediately on entering premises referred to in subclause (1), a NOPSEMA inspector must—
(a) take reasonable steps to notify the purpose of the entry to the occupier of those premises; and
Sch. 3 cl. 58(3)(b) amended by No. 26/2021 s. 42(36)(b).
(b) take reasonable steps to produce, for inspection by the occupier, the NOPSEMA inspector's identity card; and
(c) on being requested to do so by the occupier, produce, for inspection by the occupier—
Sch. 3 cl. 58(3)(c)(i) amended by No. 74/2012 s. 47.
Sch. 3 cl. 58(3)(c)(ii) amended by No. 26/2021 s. 42(36)(c).
Sch. 3 cl. 58(4) amended by No. 26/2021 s. 42(37)(b).
Sch. 3 cl. 58(4)(a) amended by No. 26/2021 s. 42(37)(a).
(a) a NOPSEMA inspector enters premises in accordance with a warrant under clause 59; and
the NOPSEMA inspector must make a copy of the warrant available to the occupier.
Sch. 3 cl. 58(5) amended by No. 26/2021 s. 42(38).
(5) Before obtaining the consent of a person as mentioned in subclause (2)(a) or (b), a NOPSEMA inspector must inform the person that—
(6) The consent of a person is not effective for the purposes of subclause (2) unless the consent is voluntary.
59 Warrant to enter premises (other than regulated business premises)
Sch. 3 cl. 59(1) amended by No. 26/2021 s. 42(39).
(1) A NOPSEMA inspector may apply to a magistrate for a warrant authorising the NOPSEMA inspector, with such assistance as the NOPSEMA inspector thinks necessary, to exercise the powers referred to in clause 58(1) in relation to particular premises (other than a residence).
Sch. 3 cl. 59(2) amended by No. 26/2021 s. 42(40).
(2) The application must be supported by evidence on oath or affirmation (whether oral or by affidavit) that sets out the grounds on which the NOPSEMA inspector is applying for the warrant.
(3) If the magistrate is satisfied that there are reasonable grounds for issuing the warrant, the magistrate may issue the warrant.
(4) A warrant issued under subclause (3) must state—
Sch. 3 cl. 59(4)(a) amended by No. 26/2021 s. 42(40).
(a) the name of the NOPSEMA inspector; and
(d) the purposes for which the warrant is issued.
(5) The day specified under subclause (4)(c) is not to be more than 7 days after the day on which the warrant is issued.
(6) The purposes specified under subclause (4)(d) must include the identification of the premises in relation to which the warrant is issued.
(7) A warrant must be issued in accordance with the Magistrates' Court Act 1989 and must be in the form set out in the regulations under that Act.
(8) Subject to any provision to the contrary in this Act, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this clause.
Sch. 3 cl. 60 (Heading) amended by No. 26/2021 s. 42(41).
60 Obstructing or hindering NOPSEMA inspector
Sch. 3 cl. 60(1) amended by No. 26/2021 s. 42(42).
(1) A person must not obstruct or hinder a NOPSEMA inspector in the exercise of his or her powers under clause 56, 57 or 58.
(2) Subclause (1) does not apply if the person has a reasonable excuse.
Subdivision 2—Offence‑related searches and seizures
61 What is evidential material?
For the purposes of this Subdivision, a thing is evidential material if it is—
(a) a thing in respect of which an offence against a listed OHS law has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) a thing that there are reasonable grounds for suspecting will afford evidence as to the commission of an offence against a listed OHS law; or
(c) a thing that there are reasonable grounds for suspecting was used, or is intended to be used, for the purposes of committing an offence against a listed OHS law.
Sch. 3 cl. 62 (Heading) amended by No. 26/2021 s. 42(43).
62 Offence‑related searches and seizures—NOPSEMA inspector already present at facility
(1) This clause applies if, in connection with an inspection—
Sch. 3 cl. 62(1)(a) amended by No. 26/2021 s. 42(44)(a).
Sch. 3 cl. 62(1)(b) amended by No. 26/2021 s. 42(44)(b).
(b) the NOPSEMA inspector believes on reasonable grounds that there is at the facility any evidential material.
Sch. 3 cl. 62(2) amended by No. 26/2021 s. 42(45).
(2) The NOPSEMA inspector may, for the purposes of the inspection—
(a) search the facility for evidential material; and
Sch. 3 cl. 62(2)(b) amended by No. 26/2021 s. 42(45).
(b) break open and search a cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, at the facility and in which the NOPSEMA inspector believes on reasonable grounds there to be any evidential material; and
Sch. 3 cl. 62(2)(c) amended by No. 26/2021 s. 42(45).
(c) examine any thing at the facility that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
Sch. 3 cl. 62(2)(d) amended by No. 26/2021 s. 42(45).
(d) seize any thing at the facility that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
Sch. 3 cl. 62(2)(e) amended by No. 26/2021 s. 42(45).
(e) take samples of any thing at the facility that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
(f) exercise the data access powers set out in clause 64 in relation to the facility; and
(g) exercise the data seizure powers set out in clause 65 in relation to the facility.
Sch. 3 cl. 62(3) amended by No. 26/2021 s. 42(46).
(3) A NOPSEMA inspector may exercise the powers referred to in subclause (2)(a), (b), (c), (e) or (f) only—
(a) with the consent of—
(i) the operator; or
(ii) the operator's representative at the facility; or
(b) in accordance with a warrant issued under clause 73(1).
Sch. 3 cl. 62(4) amended by No. 26/2021 s. 42(46).
(4) A NOPSEMA inspector may exercise the powers referred to in subclause (2)(d) or (g) only in accordance with a warrant issued under clause 73(1).
Sch. 3 cl. 62(5) amended by No. 26/2021 s. 42(47)(a).
(5) Before searching a facility under subclause (2), a NOPSEMA inspector must—
(a) take reasonable steps to notify the purpose of the search to the operator's representative at the facility; and
Sch. 3 cl. 62(5)(b) amended by No. 26/2021 s. 42(47)(b).
(b) take reasonable steps to produce, for inspection by the operator's representative, the NOPSEMA inspector's identity card; and
(c) on being requested to do so by the operator's representative, produce, for inspection by the operator's representative—
Sch. 3 cl. 62(5)(c)(i) amended by No. 74/2012 s. 47.
Sch. 3 cl. 62(5)(c)(ii) amended by No. 26/2021 s. 42(47)(c).
Sch. 3 cl. 62(6) amended by No. 26/2021 s. 42(48)(b).
Sch. 3 cl. 62(6)(a) amended by No. 26/2021 s. 42(48)(a).
(a) a NOPSEMA inspector searches a facility in accordance with a warrant issued under clause 73(1); and
(b) the operator's representative at the facility is present at the facility—
the NOPSEMA inspector must make a copy of the warrant available to the operator's representative.
Sch. 3 cl. 62(7) amended by No. 26/2021 s. 42(49).
(7) Before obtaining the consent of a person as mentioned in subclause (3)(a), a NOPSEMA inspector must inform the person that—
(8) The consent of a person is not effective for the purposes of subclause (3) unless the consent is voluntary.
Sch. 3 cl. 62(9) amended by No. 26/2021 s. 42(50)(b).
(9) If—
Sch. 3 cl. 62(9)(a) amended by No. 26/2021 s. 42(50).
(a) in the course of searching, in accordance with a warrant issued under clause 73(1) for particular evidential material relating to an offence against a listed OHS law, a NOPSEMA inspector finds a thing that the NOPSEMA inspector believes on reasonable grounds to be—
(i) a thing that is evidential material relating to that offence, although not evidential material of a kind specified in the warrant; or
(ii) a thing that is evidential material relating to another offence against a listed OHS law; and
Sch. 3 cl. 62(9)(b) amended by No. 26/2021 s. 42(50)(b).
(b) the NOPSEMA inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence—
the warrant is taken to authorise the NOPSEMA inspector to seize that thing.
Sch. 3 cl. 63 (Heading) amended by No. 26/2021 s. 42(51).
63 Offence‑related searches and seizures—NOPSEMA inspector not already present at facility, premises or vessel
Sch. 3 cl. 63(1) amended by No. 26/2021 s. 42(52).
(1) This clause applies if, in connection with an inspection, a NOPSEMA inspector believes on reasonable grounds that—
(a) there is at a facility any evidential material; or
(b) there is at any premises (other than a facility) any evidential material; or
(c) there is on any vessel any evidential material.
Sch. 3 cl. 63(2) amended by No. 26/2021 s. 42(53).
(2) The NOPSEMA inspector may, for the purposes of the inspection—
(a) enter the facility, premises or vessel; and
(b) search the facility, premises or vessel for evidential material; and
Sch. 3 cl. 63(2)(c) amended by No. 26/2021 s. 42(53).
(c) break open and search a cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, at the facility or premises or on the vessel and in which the NOPSEMA inspector believes on reasonable grounds there to be any evidential material; and
Sch. 3 cl. 63(2)(d) amended by No. 26/2021 s. 42(53).
(d) examine any thing at the facility or premises or on the vessel that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
Sch. 3 cl. 63(2)(e) amended by No. 26/2021 s. 42(53).
(e) seize any thing at the facility or premises or on the vessel that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
Sch. 3 cl. 63(2)(f) amended by No. 26/2021 s. 42(53).
(f) inspect, examine, take measurements of, conduct tests on, or take samples of, any thing at the facility or premises or on the vessel that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
Sch. 3 cl. 63(2)(g) amended by No. 26/2021 s. 42(53).
(g) take photographs of, make video recordings of, or make sketches of the facility, premises or vessel or any thing at the facility or premises or on the vessel that the NOPSEMA inspector believes on reasonable grounds to be evidential material; and
(h) exercise the data access powers set out in clause 64 in relation to the facility, premises or vessel; and
(i) exercise the data seizure powers set out in clause 65 in relation to the facility, premises or vessel.
Sch. 3 cl. 63(3) amended by No. 26/2021 s. 42(54).
(3) A NOPSEMA inspector may exercise the powers referred to in subclause (2)(a), (b), (c), (d), (f), (g) or (h) only—
(a) with the consent of—
(i) in the case of a facility—the operator's representative at the facility or the operator of the facility; or
(ii) in the case of premises—the occupier of the premises; or
(iii) in the case of a vessel—the master of the vessel; or
(b) in accordance with a warrant issued under clause 73(2) or (4).
Sch. 3 cl. 63(4) amended by No. 26/2021 s. 42(54).
(4) A NOPSEMA inspector may exercise the powers referred to in subclause (2)(e) or (i) only in accordance with a warrant issued under clause 73(1).
Sch. 3 cl. 63(5) amended by No. 26/2021 s. 42(55)(a).
(5) Immediately on entering a facility, premises or vessel under subclause (2), a NOPSEMA inspector must—
(a) take reasonable steps to notify the purpose of the entry to the operator's representative at the facility, the occupier of the premises, or the master of the vessel, as the case may be; and
Sch. 3 cl. 63(5)(b) amended by No. 26/2021 s. 42(55)(b).
(b) take reasonable steps to produce, for inspection by the operator's representative, the occupier, or the master, as the case may be, the NOPSEMA inspector's identity card; and
(c) on being requested to do so by the operator's representative, the occupier, or the master, produce, for inspection by the operator's representative, the occupier or the master, as the case may be—
Sch. 3 cl. 63(5)(c)(i) amended by No. 74/2012 s. 47.
Sch. 3 cl. 63(5)(c)(ii) amended by No. 26/2021 s. 42(55)(c).
Sch. 3 cl. 63(6) amended by No. 26/2021 s. 42(56)(b).
Sch. 3 cl. 63(6)(a) amended by No. 26/2021 s. 42(56)(a).
(a) a NOPSEMA inspector enters a facility, premises or vessel in accordance with a warrant issued under clause 73(2) or (4); and
(b) in the case of a facility or premises—the operator's representative at the facility, or the occupier of the premises, is present at the facility or premises, as the case may be—
the NOPSEMA inspector must make a copy of the warrant available to the operator's representative, the occupier of the premises, or the master of the vessel, as the case may be.
Sch. 3 cl. 63(7) amended by No. 26/2021 s. 42(57).
(7) Before obtaining the consent of a person as mentioned in subclause (3)(a), a NOPSEMA inspector must inform the person that—
(8) The consent of a person is not effective for the purposes of subclause (3) unless the consent is voluntary.
Sch. 3 cl. 63(9) amended by No. 26/2021 s. 42(58)(b).
(9) If—
Sch. 3 cl. 63(9)(a) amended by No. 26/2021 s. 42(58).
(a) in the course of searching, in accordance with a warrant issued under clause 73(2) or (4) for particular evidential material relating to an offence against a listed OHS law, a NOPSEMA inspector finds a thing that the NOPSEMA inspector believes on reasonable grounds to be—
(i) a thing that is evidential material relating to that offence, although not evidential material of a kind specified in the warrant; or
(ii) a thing that is evidential material relating to another offence against a listed OHS law; and
Sch. 3 cl. 63(9)(b) amended by No. 26/2021 s. 42(58)(b).
(b) the NOPSEMA inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence—
the warrant is taken to authorise the NOPSEMA inspector to seize that thing.
64 Data access powers
Sch. 3 cl. 64(1) amended by No. 26/2021 s. 42(59).
(1) This clause sets out the data access powers that a NOPSEMA inspector may exercise under—
(a) clause 62(2)(f) in relation to a facility; or
(b) clause 63(2)(h) in relation to a facility, premises or vessel.
Sch. 3 cl. 64(2) amended by No. 26/2021 s. 42(60).
(2) The NOPSEMA inspector may operate electronic equipment at the facility or premises or on the vessel to access data (including data not held at the facility or premises or on the vessel) if the NOPSEMA inspector believes on reasonable grounds that—
(a) the data might constitute evidential material; and
(b) the equipment can be operated without damaging it.
Note to Sch. 3 cl. 64(2) amended by No. 26/2021 s. 42(61).
A NOPSEMA inspector can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see clause 66.
Sch. 3 cl. 64(3) amended by No. 26/2021 s. 42(62).
(3) If the NOPSEMA inspector believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, the NOPSEMA inspector may—
(a) copy the data to a disk, tape or other associated device brought to the facility, premises or vessel; or
(b) if—
(i) the operator's representative at the facility; or
(ii) the occupier of the premises; or
(iii) the master of the vessel—
as the case may be, agrees in writing—copy the data to a disk, tape or other associated device at the facility or premises or on the vessel—
and take the disk, tape or device from the facility, premises or vessel.
Sch. 3 cl. 64(4) amended by No. 74/2012 s. 48.
Sch. 3 cl. 64(4)(a) amended by No. 26/2021 s. 42(62).
(a) the NOPSEMA inspector takes the disk, tape or device from the facility, premises or vessel; and
Sch. 3 cl. 64(4)(b) amended by No. 74/2012 s. 48.
(b) NOPSEMA is satisfied that the data is not required (or is no longer required) for—
(i) an inspection; or
(ii) the prosecution of a person—
NOPSEMA must arrange for—
Sch. 3 cl. 64(4)(c) amended by No. 74/2012 s. 48.
(c) the removal of the data from any disk, tape or device in the control of NOPSEMA; and
Sch. 3 cl. 64(4)(d) amended by No. 74/2012 s. 48.
(d) the destruction of any other reproduction of the data in the control of NOPSEMA.
Sch. 3 cl. 64(5) amended by No. 26/2021 s. 42(62).
(5) If the NOPSEMA inspector believes on reasonable grounds that—
(a) evidential material may be accessible by operating electronic equipment at the facility or premises or on the vessel; and
(b) expert assistance is required to operate the equipment; and
Sch. 3 cl. 64(5)(c) amended by No. 26/2021 s. 42(62).
(c) if the NOPSEMA inspector does not take action under this subclause, the material may be destroyed, altered or otherwise interfered with—
the NOPSEMA inspector may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Sch. 3 cl. 64(6) amended by No. 26/2021 s. 42(63).
(6) The NOPSEMA inspector must give notice to—
(a) the operator's representative at the facility; or
(b) the occupier of the premises; or
(c) the master of the vessel—
as the case may be, of the NOPSEMA inspector's intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(7) The equipment may be secured—
(a) for a period not longer than 24 hours; or
(b) until the equipment has been operated by the expert—
Sch. 3 cl. 64(8) amended by No. 26/2021 s. 42(64).
(8) If the NOPSEMA inspector believes on reasonable grounds that the expert assistance will not be available within 24 hours, the NOPSEMA inspector may apply to a magistrate for an extension of that period.
Sch. 3 cl. 64(9) amended by No. 26/2021 s. 42(65).
(9) The NOPSEMA inspector must give notice to—
(a) the operator's representative at the facility; or
(b) the occupier of the premises; or
(c) the master of the vessel—
as the case may be, of the NOPSEMA inspector's intention to apply for an extension, and the operator, occupier or master is entitled to be heard in relation to the application.
(10) The provisions of this Subdivision relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
65 Data seizure powers
Sch. 3 cl. 65(1) amended by No. 26/2021 s. 42(66).
(1) This clause sets out the data seizure powers that a NOPSEMA inspector may exercise under—
(a) clause 62(2)(g) in relation to a facility; or
(b) clause 63(2)(i) in relation to a facility, premises or vessel.
Sch. 3 cl. 65(2) amended by No. 26/2021 s. 42(67)(b).
Sch. 3 cl. 65(2)(a) amended by No. 26/2021 s. 42(67)(a).
(a) a NOPSEMA inspector operates electronic equipment under clause 64(2); and
Sch. 3 cl. 65(2)(b) amended by No. 26/2021 s. 42(67)(b).
(b) the NOPSEMA inspector, after operating the equipment, finds that evidential material is accessible by doing so—
the NOPSEMA inspector may—
(c) seize the equipment and any disk, tape or other associated device; or
(d) if the material can, by using a thing at the facility or premises or on the vessel, be put in documentary form—operate the thing to put the material in that form, and seize the documents so produced.
Sch. 3 cl. 65(3) amended by No. 26/2021 s. 42(68).
(3) The NOPSEMA inspector may seize equipment under subclause (2)(c) only if—
(a) it is not practicable to copy the data as mentioned in clause 64(3) or to put the material in documentary form as mentioned in subclause (2)(d) of this clause; or
(b) the equipment is in the possession of another person, and the possession by the other person could constitute an offence.
66 Access to computer data
Sch. 3 cl. 66(1) amended by No. 26/2021 s. 42(69).
(1) This clause applies if a warrant is in force under clause 73 authorising a NOPSEMA inspector to exercise data access powers under clause 64 in relation to a facility, premises or vessel.
Sch. 3 cl. 66(2) amended by No. 26/2021 s. 42(70).
(2) The NOPSEMA inspector may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the NOPSEMA inspector to do one or more of the following—
(a) access data held in, or accessible from, a computer that is at the facility or premises or on the vessel;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
(3) The magistrate may grant the order if the magistrate is satisfied that—
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer; and
(b) the specified person is—
(i) reasonably suspected of having been involved in the offence stated in the warrant; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of—
(i) the computer or a computer network of which the computer forms a part; or
(ii) measures applied to protect data held in, or accessible from, the computer.
(4) A person who is subject to an order under this clause must comply with that order.
67 Compensation for damage to equipment
(1) This clause applies if—
(a) as a result of equipment being operated as mentioned in clause 64 or 65—
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because—
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The State must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the State and the owner or user agree on.
(3) However, if the owner or user and the State fail to agree, the owner or user may institute proceedings in the Supreme Court for such reasonable amount of compensation as the Supreme Court determines.
(4) In determining the amount of compensation payable, regard is to be had to—
(a) if the equipment was operated at a facility—whether the operator of the facility, or the operator's representative at the facility, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment; or
(b) if the equipment was operated at premises other than a facility—whether the occupier of the premises, or the occupier's employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment; or
(c) if the equipment was operated on a vessel—whether the master of the vessel, or the crew of the vessel, provided any appropriate warning or guidance on the operation of the equipment.
(5) For the purposes of subclause (1) the Consolidated Fund is, to the necessary extent, appropriated accordingly.
(6) For the purposes of subclause (1)—
damage, in relation to data, includes damage by erasure of data or addition of other data.
68 Copies of things seized to be provided
Sch. 3 cl. 68(1) amended by No. 26/2021 s. 42(71).
(1) If a NOPSEMA inspector seizes, under this Subdivision—
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied—
the NOPSEMA inspector must, if requested to do so by—
(c) in the case of a facility—the operator's representative at the facility; or
(d) in the case of premises (other than a facility)—the occupier of the premises or another person who apparently represents the occupier and who is present when the thing is seized; or
(e) in the case of a vessel—the master of the vessel—
give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) However, subclause (1) does not apply if—
(a) the thing that has been seized was seized under clause 64(3) or 65(2)(d); or
(b) the document, film, computer file, thing or information is in the possession of another person, and the possession by the other person could constitute an offence.
69 Operator's representative, occupier or master entitled to be present during search
(1) If a warrant in relation to a facility is being executed, the operator's representative at the facility is entitled to observe the search being conducted.
(2) If a warrant in relation to premises is being executed, the following person is entitled to observe the search being conducted—
(i) if the occupier of the premises is present at the premises—the occupier;
(ii) if another person who apparently represents the occupier is present at the premises—the other person.
(3) If a warrant in relation to a vessel is being executed, the master of the vessel is entitled to observe the search being conducted.
(4) The right to observe the search being conducted ceases if the operator's representative, the occupier, the other person or the master, as the case may be, impedes the search.
(5) This clause does not prevent 2 or more areas of the facility, premises or vessel being searched at the same time.