Commonwealth Consolidated Acts

WORK HEALTH AND SAFETY ACT 2011 - SECT 245B

  (1)   If it is necessary to establish that the Commonwealth had a state of mind in relation to a physical element of an offence, it is sufficient to show that:

  (a)   the executive of an agency of the Commonwealth:

  (i)   engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or

  (ii)   expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or

  (b)   an authorised person for the Commonwealth:

  (i)   engaged in the conduct constituting the offence and had that state of mind in relation to the physical element of the offence; or

  (ii)   expressly, tacitly or impliedly authorised or permitted the conduct constituting the offence; or

  (c)   a corporate culture existed within an agency of the Commonwealth that directed, encouraged, tolerated or led to the conduct constituting the offence.

  (1A)   For the purposes of subsection   (1), having a state of mind in relation to a physical element of an offence does not include being negligent with respect to that physical element.

Note:   For how negligence applies in relation to the Commonwealth, see section   245BA.

  (2)   For the purposes of subsection   (1):

  (a)   paragraphs   (1)(b) and (c) do not apply if the Commonwealth proves it took reasonable precautions to prevent the conduct constituting the offence; and

  (b)   subparagraph   (1)(b)(ii) does not apply if the Commonwealth proves it took reasonable precautions to prevent the authorised person authorising or permitting the conduct constituting the offence.

  (3)   Factors relevant to the application of paragraph   (1)(c) include:

  (a)   whether authority or permission to engage in the conduct constituting an offence, of the same or a similar character, had previously been given by an officer of the agency; and

  (b)   whether the person who engaged in the conduct constituting the offence believed on reasonable grounds, or had a reasonable expectation, that an officer of the agency would have authorised or permitted the conduct.

Definitions

  (4)   In this section:

"corporate culture" , within an agency of the Commonwealth, means one or more attitudes, policies, rules, courses of conduct or practices existing within the agency generally or in the part of the agency in which the relevant activity takes place.