Contents
Part 1—Preliminary 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
3............ Objects................................................................................................ 1
4............ Act excludes some State and Territory laws...................................... 2
5............ Interpretation...................................................................................... 3
6............ Act not to prejudice national security.............................................. 11
7............ Act not to prejudice Australia’s defence.......................................... 12
8............ Act not to prejudice certain police operations................................. 13
9............ Meaning of employee etc.................................................................. 13
9A......... Meaning of contractor etc................................................................ 16
10.......... Commonwealth to act through employing authority....................... 17
11.......... Extent to which Act binds the Crown.............................................. 18
12.......... Functions conferred on Commission................................................ 19
12A....... Functions conferred on Comcare...................................................... 20
13.......... Application of Act to external Territories etc.................................. 20
14.......... Application of Act to workplaces controlled by
contractors.......... 20
15.......... Application of Act to employees working in non‑Commonwealth
premises 21
15A....... Application of Criminal Code.......................................................... 21
Part 2—Occupational health and safety 22
Division 1—General duties relating to occupational health
and safety 22
16.......... Duties of employers in relation to their
employees etc................... 22
16A....... Development of health and safety management
arrangements......... 24
16B....... Certificate evidencing employee representative’s
entitlement to be involved in consultations 25
17.......... Duty of employers in relation to third parties................................. 26
18.......... Duties of manufacturers in relation to plant and
substances............ 26
19.......... Duties of suppliers in relation to plant and
substances................... 28
20.......... Duties of person erecting or installing plant in
a workplace............ 29
21.......... Duties of employees in relation to occupational
health and safety.. 29
22.......... Reliance on information supplied or results of
research................... 31
Division 2—Specific duties relating to occupational
health and safety 33
23.......... Regulations relating to occupational health and
safety..................... 33
23A....... Unlicensed operation of major hazard facility.................................. 34
Part 3—Workplace arrangements 36
Division 1—Health and safety representatives 36
24.......... Designated work groups................................................................... 36
24A....... Consultations on designated work groups are health
and safety management arrangement consultations 38
24B....... List of designated work groups........................................................ 38
25.......... Selection of health and safety representatives.................................. 38
25A....... Election of health and safety representatives................................... 39
25B....... List of health and safety representatives.......................................... 40
25C....... Employees must be notified of selection etc. of
health and safety representative 40
26.......... Term of office................................................................................... 41
26A....... Casual vacancy................................................................................. 41
27.......... Training of health and safety representatives................................... 41
28.......... Powers of health and safety representatives.................................... 42
29.......... Provisional improvement notices..................................................... 44
30.......... Duties of employers in relation to health and
safety representatives 47
31.......... Resignation etc. of health and safety
representative........................ 49
32.......... Disqualification of health and safety
representatives....................... 49
33.......... Deputy health and safety representatives........................................ 50
Division 2—Health and safety committees 52
34.......... Health and safety committees.......................................................... 52
35.......... Functions of health and safety committees...................................... 53
36.......... Duties of employers in relation to health and
safety committees.... 54
Division 3—Emergency procedures 55
37.......... Action by health and safety representatives.................................... 55
38.......... Directions to perform other work.................................................... 56
Part 4—Advice, investigations and inquiries 57
Division 1—Advice 57
38A....... Comcare may advise employers etc................................................. 57
39.......... Referral of persons seeking advice to experts................................... 57
Division 2—Investigations 58
40.......... Appointment of investigators.......................................................... 58
41.......... Investigations.................................................................................... 59
42.......... Power of entry.................................................................................. 60
43.......... Power to require assistance and information.................................... 61
44.......... Power to take possession of plant, take samples
of substances etc. 62
45.......... Power to direct in writing that workplace etc.
not be disturbed...... 63
45A....... Power to direct orally that workplace etc. not be
disturbed............ 65
46.......... Power to issue prohibition notices................................................... 66
47.......... Power to issue improvement notices................................................ 69
48.......... Appeals............................................................................................ 71
49.......... Liability of investigators................................................................... 73
50.......... Notices not to be tampered with or removed................................... 74
51.......... Arrangements with States for services of State
officers................... 74
Division 3—Inquiries and reports 75
52.......... Application....................................................................................... 75
53.......... Report of investigation..................................................................... 75
54.......... Power to obtain information and documents.................................... 76
55.......... Commission may conduct public inquiry......................................... 76
56.......... Power to summon witnesses............................................................ 77
57.......... Failure of witness to attend.............................................................. 77
58.......... Power to administer oath or affirmation........................................... 78
59.......... Failure to be sworn or to answer questions...................................... 78
60.......... Protection of members and witnesses.............................................. 78
61.......... Contempt of Commission................................................................ 78
62.......... Powers of Commission in relation to documents
produced............. 79
63.......... Allowances to witnesses.................................................................. 79
64.......... Witness not to be prejudiced in employment................................... 79
65.......... Report to be given to Minister in certain
circumstances.................. 80
66.......... Report to be given to Minister of failures to
comply with directions etc. 80
67.......... Delegation by Commission............................................................... 81
Part 4A—Recovery of cost of administering Act 82
Division 1—Charges for services 82
67A....... Power of Commission to enter into arrangements............................ 82
Division 2—Contributions 83
67B....... Estimates of contributions................................................................ 83
67C....... Amount of contribution.................................................................... 83
67D....... Information to be given to Commission........................................... 84
67E........ Review by Commission.................................................................... 84
67F........ Review by Minister.......................................................................... 85
67G....... Confirmation of estimates................................................................ 85
67H....... Payment of contribution................................................................... 86
67J........ Penalty for late payment.................................................................. 86
67K....... Recovery of contribution and penalty.............................................. 87
Part 5—Miscellaneous 88
68.......... Notification of accidents and dangerous
occurrences....................... 88
69.......... Records of accidents and dangerous occurrences to
be kept............ 88
70.......... Codes of practice.............................................................................. 89
71.......... Use of codes of practice in proceedings........................................... 90
72.......... Interference etc. with equipment etc................................................ 91
73.......... Employer not to levy employees etc............................................... 91
74.......... Certain matters to be included in annual reports.............................. 91
75.......... Annual report of Commission.......................................................... 93
75A....... Annual report of Comcare................................................................ 93
76.......... Employer not to dismiss etc. employees on certain
grounds........... 93
77.......... Institution of proceedings................................................................. 94
78.......... Conduct of directors, servants and agents........................................ 95
79.......... Act not to give rise to other liabilities etc......................................... 96
80.......... Effect of breach of Act etc. on contracts of
employment etc........... 97
81.......... Circumstances preventing compliance with Act may
be defence to prosecution 97
82.......... Regulations....................................................................................... 98
Schedule 1—Government business enterprises 99
Schedule 2—Civil and criminal proceedings 100
Part 1—Civil proceedings 100
1............ Courts that may exercise jurisdiction under this
Part..................... 100
2............ Declarations of contravention......................................................... 100
3............ Declaration of contravention is conclusive
evidence...................... 101
4............ Pecuniary penalty orders................................................................ 101
5............ Who may apply for a declaration or order?.................................... 103
6............ Time limit for application for a declaration or
order...................... 104
7............ Conduct constituting a breach of 2 or more
provisions listed in subclause 2(1) 104
8............ Civil evidence and procedure rules for
declarations of contravention etc. 104
9............ Civil proceedings after criminal proceedings.................................. 104
10.......... Criminal proceedings during civil proceedings................................ 104
11.......... Criminal proceedings after civil proceedings.................................. 105
12.......... Evidence given in proceedings for penalty not
admissible in criminal proceedings 105
13.......... Relief from liability for contravention of
subclause 2(1)................ 105
14.......... Injunctions...................................................................................... 106
15.......... Remedial orders.............................................................................. 108
16.......... Undertakings................................................................................... 109
Part 2—Criminal prosecutions 111
17.......... Criminal jurisdiction not conferred on Federal
Court..................... 111
18.......... Offences resulting in death or serious bodily
harm........................ 111
19.......... Offences exposing employees to a substantial risk
of death or serious bodily harm 112
20.......... Other offences................................................................................ 112
21.......... Maximum penalties........................................................................ 113
Notes 117
An Act to promote the occupational health and safety of persons
employed by the Commonwealth, Commonwealth authorities and certain licensed
corporations, and for related purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Occupational
Health and Safety Act 1991.
2
Commencement [see Note 1]
(1) Sections 1 and 2 commence on the day
on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the
remaining provisions of this Act commence on a day or days to be fixed by
Proclamation.
(3) If a provision referred to in subsection (2)
does not commence within the period of 6 months commencing on the day on which
this Act receives the Royal Assent, that provision commences on the first day
after the end of that period.
3
Objects
The objects of this Act are:
(a) to secure the health, safety and
welfare at work of employees of the Commonwealth, of Commonwealth authorities
and of non‑Commonwealth licensees; and
(b) to protect persons at or near
workplaces from risks to health and safety arising out of the activities of
such employees at work; and
(c) to ensure that expert advice is
available on occupational health and safety matters affecting employers,
employees and contractors; and
(d) to promote an occupational
environment for such employees at work that is adapted to their needs relating
to health and safety; and
(e) to foster a co‑operative
consultative relationship between employers and employees on the health, safety
and welfare of such employees at work; and
(f) to encourage and assist
employers, employees and other persons on whom obligations are imposed under
the Act to observe those obligations; and
(g) to provide for effective remedies
if obligations are not met, through the use of civil remedies and, in serious
cases, criminal sanctions.
4 Act
excludes some State and Territory laws
Exclusion of State and Territory laws
(1) Subject to subsection (2), this Act
is intended to apply to the exclusion of any law of a State or Territory (other
than a law prescribed under subsection (3)) to the extent that the law of
the State or Territory relates to occupational health or safety and would
otherwise apply in relation to employers, employees or the employment of
employees.
Note: For the meaning of employer and employee,
see section 5.
State or Territory laws not excluded from applying to
situations not covered by this Act
(2) If, because of section 14 or 15,
provisions of this Act do not apply in relation to a particular situation,
subsection (1) is not intended to affect the application of State or
Territory laws to that situation.
Allowing certain State or Territory laws to apply
(3) If a State or Territory law deals with a
matter relating to occupational health or safety that is not dealt with by or
under this Act, the regulations may prescribe the law as not being intended to
be excluded by this Act.
Interpretation
(4) In this section, a reference to laws of a
State or Territory includes a reference to such laws as they have effect as
applied provisions within the meaning of the Commonwealth Places
(Application of Laws) Act 1970.
(5) In this section:
law includes a provision of a law (including,
for example, a formula or a component of a formula).
5
Interpretation
(1) In this Act, unless the contrary
intention appears:
annual report, in relation to an Entity or a
Commonwealth authority, means its annual report (if any) to the responsible
Minister relating to its activities, operations, business or affairs.
annual report of Comcare means the annual
report on Comcare prepared under section 9 of the Commonwealth
Authorities and Companies Act 1997.
annual report of the Commission means the
annual report of the Commission under section 89S of the Safety,
Rehabilitation and Compensation Act 1988.
association means an association of
employees, a principal purpose of which is the protection and promotion of the
employees’ interests in matters concerning their employment.
chief executive officer means:
(a) for a Commonwealth authority—the
person (by whatever name called) who is responsible for the administration of
the authority; or
(b) for a non‑Commonwealth
licensee—the person (by whatever name called) who is primarily and directly
responsible to the directors of the licensee for the general and overall
management of the licensee.
Comcare means the body corporate established
by section 68 of the Safety, Rehabilitation and Compensation Act 1988.
Commission means the Safety, Rehabilitation
and Compensation Commission established by section 89A of the Safety,
Rehabilitation and Compensation Act 1988.
Commonwealth authority means:
(a) a body corporate established for a
public purpose by or under a law of the Commonwealth or a law of a Territory
(other than the Australian Capital Territory, the Northern Territory or Norfolk
Island); or
(b) a body corporate:
(i) that is incorporated
under a law of the Commonwealth or a State or Territory; and
(ii) in which the
Commonwealth, or a body corporate referred to in paragraph (a), has a
controlling interest; and
(iii) that is not a body
corporate that the Minister, by notice published in the Gazette, has
declared not to be a Commonwealth authority for the purposes of this Act; or
(c) a body corporate:
(i) that is incorporated
under a law of the Commonwealth or a State or Territory; and
(ii) in which the
Commonwealth has a substantial interest; and
(iii) that is a body
corporate that the Minister, by notice published in the Gazette, has declared
to be a Commonwealth authority for the purposes of this Act; or
(d) a body corporate:
(i) that is not covered by
paragraph (a), (b) or (c); and
(ii) for which a licence
under Part VIII of the Safety, Rehabilitation and Compensation Act 1988
is in force (whether or not the licence is suspended); and
(iii) that was not an
eligible corporation for the purposes of that Part when the licence was granted.
Commonwealth authority contractor has the
meaning given by section 9A.
Commonwealth authority employee has the
meaning given by section 9.
Commonwealth contractor has the meaning given
by section 9A.
Commonwealth employee has the meaning given
by section 9.
Commonwealth premises means premises owned or
occupied by the Commonwealth or by a Commonwealth authority.
contract includes any arrangement or
understanding.
contractor has the meaning given by
section 9A.
Note: In section 14, the meaning of contractor
is affected by subsection 14(3).
controlling interest, in relation to a body
corporate, means:
(a) an interest in the body corporate
that enables the person holding the interest to:
(i) control the
composition of the board of directors of the body corporate; or
(ii) cast, or control the
casting of, more than one‑half of the maximum number of votes that might
be cast at a general meeting of the body corporate; or
(iii) control more than one‑half
of the issued share capital of the body corporate (excluding any part of that
issued share capital that carries no right to participate beyond a specified
amount in a distribution of either profits or capital); or
(b) an interest in another body
corporate that constitutes, under paragraph (a), a controlling interest in
that other body corporate, being:
(i) a body corporate that,
under paragraph (a), has a controlling interest in the first‑mentioned
body corporate; or
(ii) a body corporate that
has such a controlling interest by another application or other applications of
this paragraph.
dangerous occurrence means an occurrence, at
a workplace, that is declared by the regulations to be a dangerous occurrence
for the purpose of this definition.
designated work group means a group of
employees established as a designated work group in accordance with section 24,
or that designated work group as varied in accordance with that section, and,
in relation to an employer, means such a group that consists entirely of
employees of that employer.
employee has
the meaning given in section 9.
employee representative means:
(a) in relation to an employee of an
employer—a registered organisation of employees, or an association, of which
the employee is a member, being an employee who is qualified to be such a
member by virtue of the work the employee performs as an employee of the
employer; or
(b) in relation to a designated
work group—a registered organisation of employees, or an association, of which
an employee included in the group is a member, being an employee who is
qualified to be such a member by virtue of the work the employee performs as an
employee included in the group.
employer means:
(a) the Commonwealth; or
(b) a Commonwealth authority; or
(c) a non‑Commonwealth licensee.
employing authority means:
(a) in relation to a person who is a
Commonwealth employee or a Commonwealth contractor:
(i) the person or body
specified in the regulations to be the employing authority in relation to that
first‑mentioned person or in relation to a class of persons that includes
that first‑mentioned person; or
(ii) if the regulations do
not so specify a person or body—the principal officer
of the Entity for which the first‑mentioned person is performing
work; or
(b) in relation to a workplace at
which, or any plant, substance or thing with which, a person of the kind first‑mentioned
in paragraph (a) is performing work for the Commonwealth—the person or
body who is, under paragraph (a), the employing authority in relation to
that first‑mentioned person.
Entity means:
(a) an Agency, within the meaning of
the Public Service Act 1999, that is not a Commonwealth authority; or
(b) a Parliamentary Department within
the meaning of the Parliamentary Service Act 1999; or
(c) a person, body, organisation or
group of persons prescribed for this paragraph.
Government business enterprise means:
(a) a Commonwealth authority to which paragraph (a)
or (d) of the definition of Commonwealth authority applies:
(i) that is specified in
Schedule 1; or
(ii) that the Minister, by
instrument published in the Gazette, has declared to be a Government
business enterprise for the purposes of this Act; or
(b) a Commonwealth authority to which paragraph (b)
or (c) of that definition applies.
health and safety management arrangements
means the health and safety management arrangements referred to in paragraph
16(2)(d).
improvement notice means an improvement
notice issued under subsection 47(1).
investigation means an investigation
conducted under Part 4.
investigator means a person appointed under
section 40 to be an investigator.
involved: a person is involved in a breach of
a provision if, and only if, the person has:
(a) aided, abetted, counselled or
procured the breach; or
(b) has induced, whether by threats or
promises or otherwise, the breach; or
(c) has been in any way, by act or
omission, directly or indirectly, knowingly concerned in or party to the
breach; or
(d) has conspired with others to
effect the breach.
member, in relation to the Commission, has
the additional meaning given in subsection (3A).
non‑Commonwealth
licensee means a body corporate:
(a) for which a licence under
Part VIII of the Safety, Rehabilitation and Compensation Act 1988 is
in force (whether or not the licence is suspended); and
(b) that was an eligible corporation
for the purposes of that Part when the licence was granted; and
(c) that is not a Commonwealth
authority for the purposes of this Act.
non‑Commonwealth licensee contractor has
the meaning given by section 9A.
non‑Commonwealth licensee employee has
the meaning given by section 9.
non‑Commonwealth licensee premises, in
relation to a particular non‑Commonwealth licensee, means premises owned
or occupied by the non‑Commonwealth licensee.
own, in relation to a workplace, plant, a
substance or a thing, includes own jointly, or own in part, the workplace,
plant, substance or thing.
plant includes any machinery, equipment or
tool, and any component thereof.
premises includes any place (whether enclosed
or built on or not), including a place situated under ground or under water,
and, in particular, includes:
(a) a building, aircraft, vehicle or
vessel; and
(b) any structure, whether a fixed
structure, or a moveable structure such as a tent, and whether on land, on the
bed of any waters or floating on any waters; and
(c) a part of premises (including a
part of premises of a kind referred to in paragraph (a) or (b).
principal officer,
in relation to a Commonwealth authority, means:
(a) the person who constitutes, or is
acting as the person who constitutes, the authority or, if the authority is
constituted by 2 or more persons, the person who is entitled to preside at any
meeting of the authority at which he or she is present; or
(b) if the affairs of the authority
are administered or managed by a board or other group of persons—the person who
is entitled to preside at any meeting of that board or other group at which he
or she is present.
principal officer, in relation to an Entity,
means:
(a) if the Entity is an Agency that is
not a Commonwealth authority—the Agency Head within the meaning of the Public
Service Act 1999; or
(b) if the Entity is a Parliamentary
Department—the Secretary of the Parliamentary Department within the meaning of
the Parliamentary Service Act 1999; or
(c) if the Entity is a person, body,
organisation or group of persons prescribed for paragraph (c) of the
definition of Entity—the person prescribed as the principal
officer.
prohibition notice means a prohibition notice
issued under subsection 46(1).
registered organisation means:
(a) an organisation within the meaning
of Schedule 1 to the Workplace Relations Act 1996; or
(b) a body that is declared by the
regulations to be a registered organisation for the purposes of this Act.
reviewing authority means the Australian
Industrial Relations Commission established under section 8 of the Workplace
Relations Act 1996.
substantial interest, in relation to a body
corporate, means an interest (other than a controlling interest) in the body
corporate that enables the person holding the interest to cast, or control the
casting of, a number of votes at a general meeting of the body corporate that
is equal to or greater than the number of votes which may be cast, or whose
casting may be controlled, by any other single person.
workplace means:
(a) any Commonwealth premises in which
Commonwealth employees or Commonwealth contractors work; or
(b) any Commonwealth premises in which
Commonwealth authority employees or Commonwealth authority contractors work; or
(c) any non‑Commonwealth
licensee premises of a non‑Commonwealth licensee in which non‑Commonwealth
licensee employees, or non‑Commonwealth licensee contractors, of the
licensee work.
However, workplace does not include any part
of premises that is primarily used as a private dwelling.
(2) A reference in a particular provision of
this Act to the responsible Minister in relation to an employer, other than a
Commonwealth authority covered by paragraph (c) or (d) of the definition
of Commonwealth authority in subsection 5(1) or a non‑Commonwealth
licensee, is a reference:
(a) where the employer is the
Commonwealth and, in the circumstances set out in that provision, is acting
through a particular Entity—to the Minister
responsible for that Entity; and
(b) where the employer is a
Commonwealth authority referred to in paragraph (a) of the definition of Commonwealth
authority—to the Minister who is responsible for the administration of
the Act or other law under which the Commonwealth authority is established; and
(c) where the employer is a
Commonwealth authority referred to in paragraph (b) of the definition of
Commonwealth authority—to the Minister who is responsible for the
administration of the Entity dealing with
matters that include the matters for the performance of which the Commonwealth
authority was principally incorporated.
(3) For the purposes of this Act, an employee
is to be taken to be at work at all times when the employee is performing work
in connection with an undertaking carried on by an employer, whether or not the
work is carried out at a workplace.
(3A) A reference in this Act to a member of the
Commission includes a reference to the Chief Executive Officer appointed under
section 74 of the Safety, Rehabilitation and Compensation Act 1988.
(4) A reference in this Act to an employee of
an employer at a particular workplace is a reference to an employee who works
at that workplace in the capacity of an employee of that employer.
(5) A reference in this Act to an accident
includes a reference to the contracting of a disease.
(6) A reference in this Act to a breach of
this Act or to a breach of the regulations includes, where the breach
constitutes an offence, a reference to:
(a) an offence against section 11.1,
11.4 or 11.5 of the Criminal Code that relates to the breach; or
(b) an offence against section 6
of the Crimes Act 1914 that relates to the breach.
(7) Where this Act refers to a Minister,
specifying the Minister merely by reference to the Minister administering an
Act, the reference to the Minister is to be taken to be a reference to:
(a) if, for the time being, different
Ministers administer the Act in respect of different matters:
(i) if 2 or more Ministers
administer the Act in respect of the relevant matter—any one of those
Ministers; or
(ii) if only one Minister
administers the Act in respect of the relevant matter—that Minister; or
(b) if paragraph (a) does not
apply and, for the time being, 2 or more Ministers administer the Act—any one
of those Ministers; or
(c) if paragraphs (a) and (b) do
not apply—the Minister for the time being administering the Act.
(8) An instrument referred to in the
definition of Government business enterprise in subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
6 Act
not to prejudice national security
(1) Nothing in this Act requires or permits a
person to take any action, or to refrain from taking any action, that would be,
or could reasonably be expected to be, prejudicial to Australia’s national
security.
(2) Without limiting, by implication, the
generality of subsection (1), the Director‑General of Security may,
after consulting with the Minister, by notice in writing, declare that
specified provisions of this Act do not apply, or apply subject to such
modifications and adaptations as are set out in the declaration, in relation
to:
(a) premises or a workplace under the
control of the Director‑General; or
(b) a
person who is employed under section 84 of the Australian Security
Intelligence Organisation Act 1979; or
(c) the
performance of work by such a person for the purpose of carrying out a function
set out in section 17 of that Act;
and such a declaration has effect accordingly.
(3) In administering the Australian Security
Intelligence Organisation and in the exercise of the power under subsection (2),
the Director‑General of Security must take into account the need to
promote the objects of this Act to the greatest extent consistent with the maintenance
of Australia’s national security.
(4) A notice in writing under subsection (2)
is a disallowable instrument for the purpose of section 46A of the Acts
Interpretation Act 1901.
7 Act
not to prejudice Australia’s defence
(1) Nothing in this Act requires or permits a
person to take any action, or to refrain from taking any action, that would be,
or could reasonably be expected to be, prejudicial to Australia’s defence.
(2) Without limiting, by implication, the
generality of subsection (1), the Chief of the Defence Force may, after
consulting with the Minister, by notice in writing, declare that specified
provisions of this Act do not apply, or apply subject to such modifications and
adaptations as are set out in the declaration, in relation to a specified
member of the Defence Force, or members of the Defence Force included in a
specified class of such members, and such a declaration has effect accordingly.
(3) In the exercise of the power under subsection (2),
the Chief of the Defence Force must take into account the need to promote the
objects of this Act to the greatest extent consistent with the maintenance of Australia’s
defence.
(4) A notice in writing under subsection (2)
is a disallowable instrument for the purpose of section 46A of the Acts
Interpretation Act 1901.
8 Act
not to prejudice certain police operations
(1) Nothing in
this Act requires or permits a person to take any action, or to refrain from
taking any action, that would be, or could reasonably be expected to be,
prejudicial to an existing or future covert operation or dangerous operation of
the Australian Federal Police.
(2) In this section:
AFP employee has the same meaning as in the Australian
Federal Police Act 1979.
covert operation means the performance of a
function or service under section 8 of the Australian Federal Police
Act 1979 where knowledge of the operation by an unauthorised person, may:
(a) reduce the effectiveness of the
performance of the function or service; or
(b) expose a person to the danger of
physical harm or death arising from the actions of another person.
dangerous operation means the performance of
a function or service under section 8 of the Australian Federal Police
Act 1979 in circumstances where exposure of the Commissioner of the
Australian Federal Police, a Deputy Commissioner of the Australian Federal
Police, or an AFP employee to the danger of serious physical harm or death,
other than a danger arising from a cause within the control of the Australian
Federal Police, is reasonably necessary for the effective performance of the
function or the provision of the service.
unauthorised person in relation to a covert
operation, means a person, including an AFP employee, who is not involved in
the approval, planning or execution of the operation.
9 Meaning
of employee etc.
Employee
(1) An employee is:
(a) a Commonwealth employee (see
subsection (1A)); or
(b) a Commonwealth authority employee
(see subsection (2A)); or
(c) a non‑Commonwealth licensee
employee (see subsection (3A)).
Commonwealth employee
(1A) A Commonwealth employee is a
person who is employed by the Commonwealth, whether the person is so employed
under a law of the Commonwealth or of a Territory or under a contract of
service or apprenticeship.
(2) Without limiting the generality of subsection (1A):
(a) the Commissioner of the Australian
Federal Police, a Deputy Commissioner of the Australian Federal Police or an
AFP employee (all within the meaning of the Australian Federal Police Act
1979); or
(b) a member of the Defence Force; or
(c) a person (other than a person to
whom subsection (3) applies) who is the holder of or is acting in:
(i) an office established
by a law of the Commonwealth, other than an office that is declared by the
Minister, by notice in writing, to be an office in relation to which this Act
does not apply; or
(ii) an
office that is established by a law of a Territory (other than the Australian
Capital Territory, the Northern Territory or Norfolk Island) and is declared
by the Minister, by notice in writing, to be an office in relation to which
this Act applies;
is, for the purposes of this Act, to be taken to be
employed by the Commonwealth, and the person’s employment is, for those
purposes, to be taken to be constituted by the person’s performance of duties
as the Commissioner of the Australian Federal Police, a Deputy Commissioner of
the Australian Federal Police or an AFP employee, by the person’s performance
of duties as such a member of the Defence Force or by the person’s performance
of the duties of that office, as the case may be.
Commonwealth authority employee
(2A) A Commonwealth authority employee of
a particular Commonwealth authority is a person who is employed by the
authority, whether the person is so employed under a law of the Commonwealth or
of a Territory or under a contract of service or apprenticeship.
(3) Without limiting the generality of
subsection (2A), a person who:
(a) constitutes, or is acting as the
person constituting, a Commonwealth authority; or
(b) is, or is acting as, a member of
such an authority; or
(c) is, or is acting as, a member of a
body established, by or under the Act establishing such an authority, for a
purpose associated with the performance of the functions of the authority; or
(d) is
a deputy of a member referred to in paragraph (b) or (c);
is, for the purposes of this Act, to be taken to be
employed by that authority, and the person’s employment is, for those purposes,
to be taken to be constituted by the performance of:
(e) the duties of the authority; or
(f) the person’s duties as such a
member or acting member; or
(g) the
person’s duties as such a deputy;
as the case may be.
Non‑Commonwealth licensee employee
(3A) Subject to subsection (3B), a non‑Commonwealth
licensee employee of a particular non‑Commonwealth licensee is a
person who is employed by the licensee, whether the person is so employed under
a law of the Commonwealth or of a State or Territory, or under a contract of
service or apprenticeship.
(3B) If, under the Safety, Rehabilitation and
Compensation Act 1988, the licence of a non‑Commonwealth licensee
covers only some of the people referred to in subsection (1), only such of
those people as are covered by the licence are non‑Commonwealth
licensee employees of the licensee for the purposes of this Act.
External territory public servants not covered
(4) This Act does not apply in relation to an
officer or employee of the Public Service of an external Territory.
Minister’s power to declare people to be employed by
Commonwealth or Commonwealth authority
(5) The Minister may, by notice in writing,
declare:
(a) that a person who is included in a
class of persons specified in the notice, being a class of persons who engage
in activities or perform acts:
(i) at the request or
direction, for the benefit, or under a requirement made by or under a law, of
the Commonwealth; or
(ii) at
the request or direction, or for the benefit, of a Commonwealth authority;
is, for the purposes of this
Act, to be taken to be employed by the Commonwealth, or by that authority, as
the case may be; and
(b) that
the employment of the person is, for those purposes, to be taken to be
constituted by the performance by the person of such acts as are specified in
the notice;
and such a declaration has effect accordingly.
(6) A notice in writing under paragraph (2)(c)
or subsection (5) is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
9A
Meaning of contractor etc.
Contractor
(1) A contractor is:
(a) a Commonwealth contractor (see
subsection (2)); or
(b) a Commonwealth authority
contractor (see subsection (3)); or
(c) a non‑Commonwealth licensee
contractor (see subsection (4)).
Note: In section 14, the meaning of contractor
is affected by subsection 14(3).
Commonwealth contractor
(2) A Commonwealth contractor
is a natural person (other than a Commonwealth employee or a Commonwealth
authority employee) who performs work on Commonwealth premises in connection
with a contract between:
(a) the Commonwealth; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the Commonwealth.
Commonwealth authority contractor
(3) A Commonwealth authority contractor
of a particular Commonwealth authority is a natural person (other than a
Commonwealth employee or a Commonwealth authority employee) who performs work
on Commonwealth premises in connection with a contract between:
(a) the authority; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the authority.
Non‑Commonwealth licensee contractor
(4) A non‑Commonwealth licensee
contractor of a particular non‑Commonwealth licensee is a natural
person (other than an employee of the licensee) who performs work on non‑Commonwealth
licensee premises of the licensee in connection with a contract between:
(a) the licensee; and
(b) that person or another person
(whether a natural person or not);
which is in connection with an undertaking being carried
on by the licensee.
10
Commonwealth to act through employing authority
(1) For the purposes of this Act and any
other law:
(a) duties imposed by this Act or the
regulations on the Commonwealth as an employer shall, so far as they concern those
Commonwealth employees, and those Commonwealth contractors, in relation to whom
a particular person or body is the employing authority, be performed by that
person or body; and
(b) anything done by that person or
body in the capacity of an employing authority has effect as if it had been
done by the Commonwealth; and
(c) anything served on, or otherwise
given or notified to, that person or body in the capacity of an employing
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