10 April, 2017
Last week, the Victorian Government announced its intention to make a series of changes to different aspects of Occupational Health and Safety (OHS) Laws in Victoria. The changes were not widely publicised in advance, but may have a noticeable impact on some elements of OHS enforcement.
What’s changing?
The WorkSafe Legislation Amendment Bill 2017 (Vic) seeks to introduce changes to the Occupational Health and Safety Act 2004 (Vic) (OHSA).
The most significant changes businesses should note are:
a) Extension of the limitation period for indictable offences
The limitation period to bring prosecutions under the OHSA is proposed to be expanded significantly.
The current limitation period in Victoria is effectively a ‘hard deadline’ of 2 years from the date of the offence, or the date WorkSafe first becomes aware the offence (subject to a discretionary extension granted by the DPP).
When passed, these amendments will mean that prosecutions can be commenced up to a year after a coronial (which can be held at any time after the death of a worker), or within 6 months after an enforceable undertaking is breached.
b) Fresh evidence rule
A ‘fresh evidence’ rule is introduced which would also expand the limitation period for bringing a prosecution for an indictable offence under the OHSA.
If fresh evidence about an offence is discovered after the limitation period has expired, and the evidence could not reasonably have been discovered before the limitation period’s expiry, a proceeding for an indictable offence could be brought by WorkSafe.
This is another proposed change under the Bill which potentially extends the limitation period indefinitely.
c) Increased penalties, new offences
The Bill proposes to increase penalties for a failure to notify incidents and preserve incident sites, and to make both indictable offences.
A new offence is also introduced for failing to comply with an enforceable undertaking.
d) The power to require production of documents and ask questions
Documents
It appears that the Bill aims to expand the power of inspectors to request documents when entering a workplace. Currently, inspectors may only require the production of a document which is located at the place entered and is in the person’s possession or control. The Bill proposes to expand that power to allow an Inspector to require the production of any document, whether or not in the person’s possession or control.
Questions
The Bill proposes to change the title of s100 from ‘Power to require production of documents etc.’ to ‘Power to require production of documents and answers to questions’.
This change appears minor, but it may have significant implications. Arguments have previously been made that the current title limits the power of inspectors under s100 to ask questions only about documents produced under that section.
The Explanatory Memorandum provides that the amendment is aimed at clarifying that the power to ask questions is not inadvertently restricted to matters concerning documents.
For further information, please contact:
Miles Bastick, Partner, Herbert Smith Freehills
miles.bastick@hsf.com
