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Regulatory guide - WHS civil penalty provisions

For: Employers and managers Information seekers

We publish this regulatory guide to assist the organisations and entities we regulate.


Part 7 of the Work Health and Safety Act 2011 (WHS Act), in conjunction with part 2.4 of the Work Health and Safety Regulations 2011 (WHS Regulations), provides for WHS entry permit holders to enter workplaces in certain circumstances.

1. Prohibitions

If the words ‘WHS civil penalty provision’ appear in a provision of the WHS Act or WHS Regulations in conjunction with a statement of monetary penalty, the provision is a WHS civil penalty provision.[1] As suggested by the name, this means that any penalty for a contravention is imposed on a civil, rather than criminal, basis.

In the WHS Act, the only WHS civil penalty provisions are found in part 7 and relate to WHS entry permit holders.[2] Some of the prohibitions relate to WHS entry permit holders themselves,[3] while others relate to persons who interact with WHS entry permit holders in the performance of their functions and powers.[4]

In the WHS Regulations, there are currently no WHS civil penalty provisions.

2. Proceedings

Proceedings for a contravention of a WHS civil penalty provision may be brought by:

  • Comcare
  • an inspector, with the written authorisation of Comcare.

The proceedings can be brought in the Federal Court of Australia, the Federal Circuit Court of Australia and some state and territory courts.[5] They must be brought within two years after the contravention first comes to Comcare’s notice.[6]

A contravention of a WHS civil penalty provision is not an offence.[7] The court hearing the proceedings must apply the rules of evidence and procedure for civil proceedings.[8]

3. Decision to bring proceedings

The matters that Comcare will take into account in deciding whether to bring proceedings for a contravention of a WHS civil penalty provision are analogous to the matters to be considered in deciding whether to institute or continue a prosecution,[9] but taking into account that the proceedings are civil rather than criminal and the prohibitions are at the less serious end of the range of prohibited conduct under WHS legislation.

An important factor for Comcare to consider is whether other proceedings are on foot or have been completed. Specific provisions deal with the interaction between proceedings for a contravention of a WHS civil penalty provision and certain other proceedings, including both civil and criminal proceedings and even proceedings under other legislation.[10] Comcare will take into account the operation of these provisions in the particular case.

4. Penalty

If the court is satisfied that a person has contravened a WHS civil penalty provision, it may order the person to pay a monetary payment that the court considers appropriate.[11] In addition, the court may make any other order it considers appropriate, including an injunction.[12]

The maximum amount for a monetary penalty for a contravention of a WHS civil penalty provision is specified in the provision itself.[13] The amounts range from $2,000 to $50,000.


References

[1] Section 254.

[2] See section 254(1).

[3] For instance, section 146 prohibits a WHS entry permit holder from acting in an improper manner in exercising, or seeking to exercise, rights in accordance with part 7.

[4] For instance, section 144 prohibits a person, without reasonable excuse, from refusing or unduly delaying entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under part 7.

[5] See the definition of 'court' in section 4.

[6] Section 261.

[7] Section 257.

[8] Section 258.

[9] See Prosecutions.

[10] Sections 263-266.

[11] Section 259(1)(a).

[12] Section 259(1)(b).

[13] Section 259(2).

Page last reviewed: 12 March 2020
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 26 Nov 2020

https://www.comcare.gov.au/scheme-legislation/whs-act/regulatory-guides/whs-civil-penalty-provisions