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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Safety in Recreational Water
Activities Bill 2011
Queensland
Safety in Recreational Water Activities
Bill 2011
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Application of this Act in circumstances to which Work Health
and Safety Act 2011 applies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5 Compliance with this Act is no defence for Work Health and
Safety Act 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 Meaning of recreational water activity . . . . . . . . . . . . . . . . . . . . . 9
8 Meaning of provision of recreational water activity. . . . . . . . . . . . 9
9 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Part 2 Health and safety duties
Division 1 Introductory
10 Principles that apply to a duty . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11 Duty not transferable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12 Person may have more than 1 duty . . . . . . . . . . . . . . . . . . . . . . . 11
13 More than 1 person can have a duty . . . . . . . . . . . . . . . . . . . . . . 11
14 Management of risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15 What is reasonably practicable in ensuring health and safety . . . 11
Division 2 Duties
16 Primary duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17 Duty of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18 Duties of workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 Duties of other persons at a place where recreational water
activities are provided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Safety in Recreational Water Activities Bill 2011
Contents
Division 3 Offences and penalties
20 Health and safety duty for recreational water activities . . . . . . . . 16
21 Reckless conduct--category 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
22 Failure to comply with health and safety duty for recreational
water activities--category 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
23 Failure to comply with health and safety duty for recreational
water activities--category 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
24 Duty prevails over particular excuses . . . . . . . . . . . . . . . . . . . . . . 18
25 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Part 3 Incident notification
26 What is a notifiable incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
27 What is a serious injury or illness . . . . . . . . . . . . . . . . . . . . . . . . . 19
28 What is a dangerous incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
29 Duty to notify of notifiable incidents . . . . . . . . . . . . . . . . . . . . . . . 20
30 Duty to preserve incident sites . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Part 4 Enforcement
31 General provision for applied WHS provision . . . . . . . . . . . . . . . . 22
32 The regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
33 Inspectors and enforcement measures . . . . . . . . . . . . . . . . . . . . 23
34 Enforceable undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
35 Review of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
36 Legal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
37 Civil liability not affected by this Act . . . . . . . . . . . . . . . . . . . . . . . 26
Part 5 General
Division 1 General provisions
38 Offence to give false or misleading information . . . . . . . . . . . . . . 26
39 Act does not affect legal professional privilege . . . . . . . . . . . . . . 27
40 Immunity from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
41 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
42 No contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 2 Codes of practice
43 Approved codes of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
44 Use of codes of practice in proceedings . . . . . . . . . . . . . . . . . . . 30
Division 3 Regulation-making powers
45 Regulation-making powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Page 2
Safety in Recreational Water Activities Bill 2011
Contents
Part 6 Transitional provisions
46 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
47 Relationship with particular provisions of Work Health and
Safety Act 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
48 Enforceable undertaking preserved . . . . . . . . . . . . . . . . . . . . . . . 32
49 Action by an inspector preserved . . . . . . . . . . . . . . . . . . . . . . . . . 34
50 Improvement notice preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
51 Prohibition notice preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
52 Reviews and appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
53 Relationship with transitional provisions under the Work Health
and Safety Act 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Part 7 Amendment of other legislation
Division 1 Penalties and Sentences Act 1992
54 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
55 Amendment of s 5 (Meaning of penalty unit) . . . . . . . . . . . . . . . . 37
Division 2 Work Health and Safety Act 2011
56 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
57 Amendment of schedule 1, part 2 (Relationship with other Acts). 37
Schedule 1 Regulation-making powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Schedule 2 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Page 3
2011
A Bill
for
An Act about health and safety in recreational water activities
provided in the conduct of a business or undertaking
Safety in Recreational Water Activities Bill 2011
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
1 Short title 3
This Act may be cited as the Safety in Recreational Water 4
Activities Act 2011. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
3 Object 8
(1) The main object of this Act is to ensure the health and safety 9
of persons to whom recreational water activities are provided 10
by a person conducting a business or undertaking by-- 11
(a) protecting the persons against harm to their health, 12
safety and welfare through the elimination or 13
minimisation of risks arising from the provision to them 14
of recreational water activities; and 15
(b) promoting the provision of advice, information, 16
education and training for health and safety in relation 17
to the provision of the recreational water activities; and 18
(c) securing compliance with this Act through effective and 19
appropriate compliance and enforcement measures; and 20
(d) ensuring appropriate scrutiny and review of actions 21
taken by persons exercising powers and performing 22
functions under this Act; and 23
(e) providing a framework for continuous improvement and 24
progressively higher standards of health and safety in 25
relation to the provision of the recreational water 26
activities. 27
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Safety in Recreational Water Activities Bill 2011
Part 1 Preliminary
[s 4]
(2) In furthering subsection (1)(a), regard must be had to the 1
principle that persons should be given the highest level of 2
protection as is reasonably practicable against harm to their 3
health, safety and welfare from hazards and risks arising from 4
the provision of recreational water activities. 5
(3) This Act operates in conjunction with the Work Health and 6
Safety Act 2011 and for that purpose substantial provisions are 7
adopted from that Act and this Act makes provision for the 8
relationship between this Act and that Act. 9
4 Application of this Act in circumstances to which Work 10
Health and Safety Act 2011 applies 11
(1) This section applies if-- 12
(a) this Act applies in particular circumstances; and 13
(b) the Work Health and Safety Act 2011 also has 14
application in the circumstances. 15
Note-- 16
The Work Health and Safety Act 2011, schedule 1, part 2, division 4 17
provides that in particular circumstances the primary duty imposed by 18
section 16 of this Act is the duty that will apply for particular persons. 19
That provision also ensures consistency of that Act and this Act in 20
relation to the primary duty. 21
(2) The Work Health and Safety Act 2011 continues to apply, and 22
must be complied with, in addition to this Act. 23
(3) If this Act is inconsistent with the Work Health and Safety Act 24
2011, the Work Health and Safety Act 2011 prevails to the 25
extent of the inconsistency. 26
(4) However, this Act is not inconsistent with the Work Health 27
and Safety Act 2011 only because it-- 28
(a) imposes additional duties on a person on whom a duty is 29
imposed under the Work Health and Safety Act 2011; or 30
(b) otherwise increases the standards of safety required for 31
recreational water activities. 32
Page 7
Safety in Recreational Water Activities Bill 2011
Part 1 Preliminary
[s 5]
Note-- 1
For an example of paragraphs (a) and (b), see section 18. 2
(5) Without limiting subsection (2), (3) or (4)-- 3
(a) if a provision of this Act deals with a particular matter 4
and a provision of the Work Health and Safety Act 2011 5
deals with the same matter and it is impossible to 6
comply with both provisions, a person must comply 7
with the provision of the Work Health and Safety Act 8
2011 and not with the provision of this Act; and 9
(b) if a provision of this Act deals with a particular matter 10
and a provision of the Work Health and Safety Act 2011 11
deals with the same matter and it is possible to comply 12
with both provisions, a person must comply with both 13
provisions. 14
(6) The following subsections apply for the purpose of ensuring 15
consistency between the administration of this Act and the 16
administration of the Work Health and Safety Act 2011. 17
(7) An inspector may not exercise a compliance power for this 18
Act in relation to a particular matter if an inspector has 19
already exercised a corresponding power under the Work 20
Health and Safety Act 2011 for the same matter and for the 21
same purpose. 22
(8) The regulator may not accept a recreational water activities 23
health and safety undertaking from a person if the regulator 24
has already accepted a WHS undertaking under the Work 25
Health and Safety Act 2011 from the person for the same 26
matter and for the same purpose. 27
5 Compliance with this Act is no defence for Work Health 28
and Safety Act 2011 29
Compliance with this Act, or a duty or requirement imposed 30
under it, is not in itself a defence in a proceeding for an 31
offence against the Work Health and Safety Act 2011. 32
Page 8
Safety in Recreational Water Activities Bill 2011
Part 1 Preliminary
[s 6]
6 Definitions 1
The dictionary in schedule 2 defines particular words used in 2
this Act. 3
7 Meaning of recreational water activity 4
A recreational water activity is an activity carried out-- 5
(a) for the purposes of recreation; and 6
(b) on, in or under waters. 7
Examples of water activity-- 8
diving, snorkelling 9
Note-- 10
This Act deals with recreational water activities only in the context of 11
them being provided by a person in the conduct of a business or 12
undertaking and under the management or control of the person. 13
8 Meaning of provision of recreational water activity 14
(1) A person conducting a business or undertaking provides a 15
recreational water activity if the recreational water activity is 16
provided under the management or control of the person. 17
Example-- 18
a person conducting a commercial diving business that provides 19
recreational diving trips to the Great Barrier Reef with all necessary 20
training, equipment and supervision 21
(2) The provision of recreational water activity includes any of 22
the following done as part of the management or control of the 23
provided activity-- 24
(a) the provision of access to a place; 25
(b) supervision; 26
(c) supply of anything; 27
(d) advice, demonstrations or training. 28
Page 9
Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 9]
Example-- 1
A person conducts a retail business selling fins and snorkelling masks. 2
The person for that reason alone is not a person conducting a business or 3
undertaking providing recreational water activities. 4
(3) A person conducting a business or undertaking providing 5
recreational water activities does not provide them to a person 6
only because the person is a worker carrying out work in the 7
business or undertaking. 8
Note-- 9
The Work Health and Safety Act 2011 provides for the work health and 10
safety of workers mentioned in subsection (3). 11
9 Act binds all persons 12
(1) This Act binds all persons including the State and, so far as 13
the legislative power of the Parliament permits, the 14
Commonwealth and the other States. 15
(2) The State, the Commonwealth and other States are liable for 16
an offence against this Act. 17
Part 2 Health and safety duties 18
Division 1 Introductory 19
10 Principles that apply to a duty 20
This division sets out the principles that apply to a duty that a 21
person has under this Act. 22
11 Duty not transferable 23
A duty can not be transferred to another person. 24
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Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 12]
12 Person may have more than 1 duty 1
A person can have more than 1 duty by virtue of being in 2
more than 1 class of duty holder. 3
13 More than 1 person can have a duty 4
(1) More than 1 person can concurrently have the same duty. 5
(2) Each duty holder must comply with that duty to the standard 6
required by this Act even if another duty holder has the same 7
duty. 8
(3) If more than 1 person has a duty for the same matter, each 9
person-- 10
(a) retains responsibility for the person's duty in relation to 11
the matter; and 12
(b) must discharge the person's duty to the extent to which 13
the person has the capacity to influence and control the 14
matter or would have had that capacity but for an 15
agreement or arrangement purporting to limit or remove 16
that capacity. 17
14 Management of risks 18
A duty imposed on a person to ensure health and safety 19
requires the person-- 20
(a) to eliminate risks to health and safety, so far as is 21
reasonably practicable; and 22
(b) if it is not reasonably practicable to eliminate risks to 23
health and safety, to minimise those risks so far as is 24
reasonably practicable. 25
15 What is reasonably practicable in ensuring health and 26
safety 27
In this Act, reasonably practicable, in relation to a duty to 28
ensure health and safety, means that which is, or was at a 29
particular time, reasonably able to be done in relation to 30
Page 11
Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 16]
ensuring health and safety, taking into account and weighing 1
up all relevant matters including-- 2
(a) the likelihood of the hazard or the risk concerned 3
occurring; and 4
(b) the degree of harm that might result from the hazard or 5
the risk; and 6
(c) what the person concerned knows, or ought reasonably 7
to know, about-- 8
(i) the hazard or the risk; and 9
(ii) ways of eliminating or minimising the risk; and 10
(d) the availability and suitability of ways to eliminate or 11
minimise the risk; and 12
(e) after assessing the extent of the risk and the available 13
ways of eliminating or minimising the risk, the cost 14
associated with available ways of eliminating or 15
minimising the risk, including whether the cost is 16
grossly disproportionate to the risk. 17
Division 2 Duties 18
16 Primary duty of care 19
(1) A person conducting a business or undertaking that provides 20
recreational water activities must ensure, so far as is 21
reasonably practicable, that the health and safety of persons 22
for whom the activities are provided are not put at risk by the 23
provision of the recreational water activity. 24
(2) Without limiting subsection (1), a person conducting a 25
business or undertaking that provides recreational water 26
activities must ensure, so far as is reasonably practicable-- 27
(a) the provision and maintenance of safe plant and 28
structures; and 29
(b) the safe use, handling and storage of plant, structures 30
and substances; and 31
Page 12
Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 17]
(c) the provision of any information, training, instruction or 1
supervision that is necessary to protect persons for 2
whom the activities are provided from risks to their 3
health and safety arising from the provision of the 4
activities; and 5
(d) that persons and conditions at a place where recreational 6
water activities are provided are monitored for the 7
purpose of preventing illness or injury of persons for 8
whom the activities are provided. 9
17 Duty of officers 10
(1) If a person conducting a business or undertaking has a duty or 11
obligation under this Act, an officer of the person conducting 12
the business or undertaking must exercise due diligence to 13
ensure that the person conducting the business or undertaking 14
complies with that duty or obligation. 15
(2) Subject to subsection (3), the maximum penalty applicable 16
under division 3 for an offence relating to the duty of an 17
officer under this section is the maximum penalty fixed for an 18
officer of a person conducting a business or undertaking for 19
that offence. 20
(3) Despite anything to the contrary in section 23, if the duty or 21
obligation of a person conducting a business or undertaking 22
was imposed under a provision other than a provision of this 23
division, the maximum penalty under section 23 for an 24
offence by an officer under section 23 in relation to the duty or 25
obligation is the maximum penalty fixed under the provision 26
creating the duty or obligation for an individual who fails to 27
comply with the duty or obligation. 28
(4) An officer of a person conducting a business or undertaking 29
may be convicted or found guilty of an offence under this Act 30
relating to a duty under this section whether or not the person 31
conducting the business or undertaking has been convicted or 32
found guilty of an offence under this Act relating to the duty 33
or obligation. 34
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Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 17]
(5) In this section, due diligence includes taking reasonable 1
steps-- 2
(a) to acquire and keep up-to-date knowledge of 3
recreational water activities health and safety; and 4
(b) to gain an understanding of the nature of the operations 5
of the business or undertaking of the person conducting 6
the business or undertaking and generally of the hazards 7
and risks associated with those operations; and 8
(c) to ensure that the person conducting the business or 9
undertaking has available for use, and uses, appropriate 10
resources and processes to eliminate or minimise risks 11
to health and safety from recreational water activities 12
provided as part of the conduct of the business or 13
undertaking; and 14
(d) to ensure that the person conducting the business or 15
undertaking has appropriate processes for receiving and 16
considering information regarding incidents, hazards 17
and risks and responding in a timely way to that 18
information; and 19
(e) to ensure that the person conducting the business or 20
undertaking has, and implements, processes for 21
complying with any duty or obligation of the person 22
conducting the business or undertaking under this Act; 23
and 24
Example-- 25
For paragraph (e), the duties or obligations under this Act of a 26
person conducting a business or undertaking may include-- 27
· reporting notifiable incidents 28
· ensuring compliance with notices issued under this Act 29
· ensuring the provision of training and instruction to workers 30
about health and safety in providing recreational water 31
activities. 32
(f) to verify the provision and use of the resources and 33
processes mentioned in paragraphs (c) to (e). 34
Page 14
Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 18]
18 Duties of workers 1
While providing recreational water activities at work, a 2
worker must-- 3
(a) take reasonable care that his or her acts or omissions do 4
not adversely affect the health and safety of persons for 5
whom recreational water activities are provided; and 6
(b) comply, so far as the worker is reasonably able, with any 7
reasonable instruction that is given by the person 8
conducting the business or undertaking to allow the 9
person to comply with this Act. 10
19 Duties of other persons at a place where recreational 11
water activities are provided 12
(1) This section applies in relation to persons present at a place 13
where recreational water activities are being provided in the 14
conduct of a business or undertaking. 15
(2) Persons present at the place include any of the following who 16
are present at the place-- 17
(a) a person conducting the business or undertaking; 18
(b) a worker in the business or undertaking; 19
(c) a person for whom the activities are provided; 20
(d) a person who is an onlooker or present for some other 21
reason. 22
(3) A person mentioned in subsection (2)(c) and (d) must-- 23
(a) take reasonable care for his or her own health and 24
safety; and 25
(b) take reasonable care that his or her acts or omissions do 26
not adversely affect the health and safety of other 27
persons present at the place; and 28
(c) comply, so far as the person is reasonably able, with any 29
reasonable instruction that is given by the person 30
conducting the business or undertaking to allow the 31
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Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 20]
person conducting the business or undertaking to 1
comply with this Act. 2
Division 3 Offences and penalties 3
20 Health and safety duty for recreational water activities 4
Health and safety duty for recreational water activities 5
means a duty imposed under division 2. 6
21 Reckless conduct--category 1 7
(1) A person commits a category 1 offence if-- 8
(a) the person has a health and safety duty for recreational 9
water activities; and 10
(b) the person, without reasonable excuse, engages in 11
conduct that exposes an individual to whom that duty is 12
owed to a risk of death or serious injury or illness; and 13
(c) the person is reckless as to the risk to an individual of 14
death or serious injury or illness. 15
Maximum penalty-- 16
(a) for an offence committed by an individual, other than as 17
a person conducting a business or undertaking or as an 18
officer of a person conducting a business or 19
undertaking--3000 penalty units or 5 years 20
imprisonment; or 21
(b) for an offence committed by an individual as a person 22
conducting a business or undertaking or as an officer of 23
a person conducting a business or undertaking--6000 24
penalty units or 5 years imprisonment; or 25
(c) for an offence committed by a body corporate--30000 26
penalty units. 27
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Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 22]
Note-- 1
In this division, the penalty applicable to a body corporate is separately 2
expressed. Otherwise the Penalties and Sentences Act 1992, section 3
181B applies for this Act. 4
(2) The prosecution bears the burden of proving that the conduct 5
was engaged in without reasonable excuse. 6
(3) A category 1 offence is a crime. 7
22 Failure to comply with health and safety duty for 8
recreational water activities--category 2 9
A person commits a category 2 offence if-- 10
(a) the person has a health and safety duty for recreational 11
water activities; and 12
(b) the person fails to comply with that duty; and 13
(c) the failure exposes an individual to a risk of death or 14
serious injury or illness. 15
Maximum penalty-- 16
(a) for an offence committed by an individual, other than as 17
a person conducting a business or undertaking or as an 18
officer of a person conducting a business or 19
undertaking--1500 penalty units; or 20
(b) for an offence committed by an individual as a person 21
conducting a business or undertaking or as an officer of 22
a person conducting a business or undertaking--3000 23
penalty units; or 24
(c) for an offence committed by a body corporate--15000 25
penalty units. 26
Note-- 27
See also the note to section 21(1). 28
23 Failure to comply with health and safety duty for 29
recreational water activities--category 3 30
A person commits a category 3 offence if-- 31
Page 17
Safety in Recreational Water Activities Bill 2011
Part 2 Health and safety duties
[s 24]
(a) the person has a health and safety duty for recreational 1
water activities; and 2
(b) the person fails to comply with that duty. 3
Maximum penalty-- 4
(a) for an offence committed by an individual, other than as 5
a person conducting a business or undertaking or as an 6
officer of a person conducting a business or 7
undertaking--500 penalty units; or 8
(b) for an offence committed by an individual as a person 9
conducting a business or undertaking or as an officer of 10
a person conducting a business or undertaking--1000 11
penalty units; or 12
(c) for an offence committed by a body corporate--5000 13
penalty units. 14
Note-- 15
See also the note to section 21(1). 16
24 Duty prevails over particular excuses 17
For an offence against section 22 or 23, the Criminal Code 18
sections 23(1) and 24 are subject to division 2. 19
25 Exceptions 20
(1) A volunteer does not commit an offence under this division 21
for a failure to comply with a health and safety duty for 22
recreational water activities, except a duty under section 18 or 23
19. 24
(2) An unincorporated association does not commit an offence 25
under this Act for a failure to comply with a duty or obligation 26
imposed on the unincorporated association under this Act. 27
(3) However-- 28
(a) an officer of an unincorporated association (other than a 29
volunteer) may be liable for a failure to comply with a 30
duty under section 17; and 31
Page 18
Safety in Recreational Water Activities Bill 2011
Part 3 Incident notification
[s 26]
(b) a member of an unincorporated association may be 1
liable for failure to comply with a duty under section 18 2
or 19. 3
Part 3 Incident notification 4
26 What is a notifiable incident 5
In this Act, notifiable incident means-- 6
(a) the death of a person; or 7
(b) a serious injury or illness of a person; or 8
(c) a dangerous incident. 9
27 What is a serious injury or illness 10
In this part, serious injury or illness of a person means an 11
injury or illness requiring the person to have-- 12
(a) immediate treatment as an in-patient in a hospital; or 13
Example-- 14
treatment for a serious decompression illness arising while 15
diving 16
(b) immediate treatment for-- 17
(i) the amputation of any part of his or her body; or 18
(ii) a serious head injury; or 19
(iii) a serious eye injury; or 20
(iv) a serious burn; or 21
(v) the separation of his or her skin from an underlying 22
tissue (such as degloving or scalping); or 23
(vi) a spinal injury; or 24
(vii) the loss of a bodily function; or 25
Page 19
Safety in Recreational Water Activities Bill 2011
Part 3 Incident notification
[s 28]
(viii) serious lacerations; 1
and includes any other injury or illness prescribed under a 2
regulation but does not include an illness or injury of a 3
prescribed kind. 4
28 What is a dangerous incident 5
In this part, a dangerous incident means an incident in 6
relation to a place where recreational water activities are 7
provided that exposes a person to a serious risk to the person's 8
health or safety emanating from an immediate or imminent 9
exposure to-- 10
(a) an uncontrolled escape, spillage or leakage of a 11
substance; or 12
(b) an uncontrolled implosion, explosion or fire; or 13
(c) an uncontrolled escape of gas or steam; or 14
(d) an uncontrolled escape of a pressurised substance; or 15
(e) electric shock; or 16
(f) the fall or release from a height of any plant, substance 17
or thing; or 18
(g) any other event prescribed under a regulation; 19
but does not include an incident of a prescribed kind. 20
29 Duty to notify of notifiable incidents 21
(1) A person who conducts a business or undertaking that 22
provides recreational water activities must ensure that the 23
regulator is notified immediately after becoming aware that a 24
notifiable incident arising out of the conduct of the business or 25
undertaking has occurred. 26
Maximum penalty--100 penalty units. 27
(2) The notice must be given as required under this section and by 28
the fastest possible means. 29
(3) The notice must be given-- 30
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Part 3 Incident notification
[s 30]
(a) by telephone; or 1
(b) in writing. 2
Example-- 3
The written notice can be given by facsimile, email or other 4
electronic means. 5
(4) A person giving notice by telephone must-- 6
(a) give the details of the incident requested by the 7
regulator; and 8
(b) if required by the regulator, give a written notice of the 9
incident within 48 hours of that requirement being 10
made. 11
(5) A written notice must be in a form, or contain the details, 12
approved by the regulator. 13
(6) If the regulator receives a notice by telephone and a written 14
notice is not required, the regulator must give the person 15
conducting the business or undertaking-- 16
(a) details of the information received; or 17
(b) an acknowledgement of receiving the notice. 18
(7) A person conducting a business or undertaking providing 19
recreational water activities must keep a record of each 20
notifiable incident for at least 5 years from the day that notice 21
of the incident is given to the regulator under this section. 22
Maximum penalty--50 penalty units. 23
30 Duty to preserve incident sites 24
(1) The person with management or control of a place at which 25
recreational water activities are provided and at which a 26
notifiable incident has occurred must ensure, so far as is 27
reasonably practicable, that the site where the incident 28
occurred is not disturbed until an inspector arrives at the site 29
or any earlier time that an inspector directs. 30
Maximum penalty--100 penalty units. 31
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Part 4 Enforcement
[s 31]
(2) In subsection (1) a reference to a site includes any plant, 1
substance, structure or thing associated with the notifiable 2
incident. 3
(3) Subsection (1) does not prevent any action-- 4
(a) to assist an injured person; or 5
(b) to remove a deceased person; or 6
(c) that is essential to make the site safe or to minimise the 7
risk of a further notifiable incident; or 8
(d) that is associated with a police investigation; or 9
(e) for which an inspector or the regulator has given 10
permission. 11
Part 4 Enforcement 12
31 General provision for applied WHS provision 13
(1) This section applies for the purpose of applying, for this Act, a 14
provision of the Work Health and Safety Act 2011 that, under 15
this part, is applied for this Act. 16
(2) A reference in an applied WHS provision to the Work Health 17
and Safety Act 2011 is taken to be a reference to this Act. 18
Example-- 19
An applied WHS provision uses the term `this Act'. As enacted in the 20
Work Health and Safety Act 2011 it means that Act, but as an applied 21
WHS provision for this Act it means this Act. 22
(3) Subsection (4) applies if-- 23
(a) a provision of the Work Health and Safety Act 2011 that 24
is applied for this Act mentions another provision of that 25
Act (the mentioned provision); and 26
(b) the mentioned provision has also been applied for this 27
Act. 28
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Part 4 Enforcement
[s 32]
(4) The reference to the mentioned provision is taken to be a 1
reference to that provision as applied for this Act. 2
Example-- 3
1 Section 32 applies the Work Health and Safety Act 2011, section 4
155 for this Act. 5
2 Applied WHS section 155 mentions section 172 of that Act. 6
3 Section 172 of that Act has been applied as a provision for this Act 7
by section 33(3). 8
4 Therefore, in applied WHS section 155, the reference to section 9
172 is taken to be a reference to applied WHS section 172. 10
(5) Subject to this Act, a term used in an applied WHS provision 11
has the same meaning as it has in the Work Health and Safety 12
Act 2011, with necessary changes for its application for this 13
Act. 14
32 The regulator 15
(1) The regulator under the Work Health and Safety Act 2011 is 16
the regulator under this Act. 17
(2) The regulator has, for this Act, the same functions as the 18
regulator has for the Work Health and Safety Act 2011 under 19
section 152 of that Act, and that section applies for this Act as 20
if in the section-- 21
(a) a reference to a health and safety matter were a 22
reference to a matter relating to recreational water 23
activities health and safety; and 24
(b) a reference to a corresponding regulator were a 25
reference to the corresponding regulator under this Act. 26
(3) Sections 153 to 155 of the Work Health and Safety Act 2011 27
apply for this Act. 28
33 Inspectors and enforcement measures 29
(1) An inspector under the Work Health and Safety Act 2011 is an 30
inspector under this Act. 31
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[s 34]
(2) The Work Health and Safety Act 2011, sections 157 to 159 1
apply for this Act, and an identity card issued under applied 2
WHS section 157(1) is taken to have been issued for this Act. 3
(3) The Work Health and Safety Act 2011, part 9, divisions 2 to 6 4
and part 10 apply for this Act as if-- 5
(a) a reference to a workplace were a reference to a place 6
where recreational water activities are provided by a 7
person in the conduct of a business or undertaking; and 8
(b) a reference to work health and safety were a reference to 9
recreational water activities health and safety. 10
34 Enforceable undertakings 11
The Work Health and Safety Act 2011, part 11 applies for this 12
Act as if-- 13
(a) a reference in the part to a contravention of that Act 14
were a reference to a contravention of this Act; and 15
(b) a reference to a WHS undertaking were a reference to a 16
recreational water activities health and safety 17
undertaking. 18
35 Review of decisions 19
(1) The table in applied WHS schedule 2A (other than to the 20
extent to which it relates to sections 54(2), 72(6), 76(6) and 21
102 of the Work Health and Safety Act 2011) states-- 22
(a) decisions made under this Act that are reviewable under 23
this part (reviewable decisions); and 24
(b) who is eligible to apply for review of a reviewable 25
decision (the eligible person). 26
(2) Jurisdiction is conferred on QCAT to hear and decide an 27
external review relating to a reviewable decision. 28
(3) The Work Health and Safety Act 2011, part 12 (other than 29
section 223(1)) and schedule 2A (as provided under 30
subsection (1)) apply for this Act as if-- 31
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Part 4 Enforcement
[s 36]
(a) a reference in those provisions, other than in applied 1
WHS section 224, to an internal review were a reference 2
to an internal review as defined under applied WHS 3
section 224; and 4
(b) a reference in those provisions to a reviewable decision 5
or eligible person were a reference to a reviewable 6
decision or eligible person under subsection (1). 7
(4) In this section-- 8
external review means an external review as defined under 9
applied WHS section 229. 10
36 Legal proceedings 11
The Work Health and Safety Act 2011, part 13 (other than 12
division 7) applies for this Act as if-- 13
(a) a reference in the part to a category 1 or category 2 14
offence were a reference to a category 1 or category 2 15
offence against this Act; and 16
(b) subject to paragraph (a), a reference in the part to an 17
offence against or contravention of that Act were a 18
reference to an offence against or contravention of this 19
Act; and 20
(c) a reference in the part to a work health and safety duty 21
provision were a reference to a provision of part 2, 22
division 2; and 23
(d) a reference in the part to a court-ordered WHS 24
undertaking were a reference to a court-ordered 25
recreational water activities health and safety 26
undertaking; and 27
(e) a reference in the part to an improvement notice, 28
prohibition notice or non-disturbance notice were a 29
reference to those notices under an applied WHS 30
provision. 31
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Part 5 General
[s 37]
37 Civil liability not affected by this Act 1
Nothing in this Act is to be construed as-- 2
(a) conferring a right of action in civil proceedings for a 3
contravention of a provision of this Act; or 4
(b) conferring a defence to an action in civil proceedings or 5
otherwise affecting a right of action in civil proceedings; 6
or 7
(c) affecting the extent (if any) to which a right of action 8
arises, or civil proceedings may be taken, for breaches 9
of duties or obligations imposed under a regulation. 10
Part 5 General 11
Division 1 General provisions 12
38 Offence to give false or misleading information 13
(1) A person must not give information in complying or 14
purportedly complying with this Act that the person knows-- 15
(a) to be false or misleading in a material particular; or 16
(b) omits any matter or thing without which the information 17
is misleading. 18
Maximum penalty--100 penalty units. 19
(2) A person must not produce a document in complying or 20
purportedly complying with this Act that the person knows to 21
be false or misleading in a material particular without-- 22
(a) indicating how it is false or misleading and, if 23
practicable, providing correct information; or 24
(b) accompanying the document with a written statement 25
signed by the person or, in the case of a body corporate, 26
by a competent officer of the body corporate-- 27
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Part 5 General
[s 39]
(i) stating that the document is, to the knowledge of 1
the first-mentioned person, false or misleading in a 2
material particular; and 3
(ii) setting out, or referring to, the material particular 4
in which the document is, to the knowledge of the 5
first-mentioned person, false or misleading. 6
Maximum penalty--100 penalty units. 7
(3) Subsection (2) places an evidential burden on the accused to 8
show that the accused had indicated the extent to which the 9
document was false or misleading or that the accompanying 10
document sufficiently explained the extent to which the 11
document was false or misleading. 12
39 Act does not affect legal professional privilege 13
Nothing in this Act requires a person to produce a document 14
that would disclose information, or otherwise provide 15
information, that is the subject of legal professional privilege. 16
40 Immunity from liability 17
(1) An inspector, or other person engaged in the administration of 18
this Act, incurs no civil liability for an act or omission done or 19
omitted to be done in good faith and in the execution or 20
purported execution of powers and functions under this Act. 21
(2) A civil liability that would, but for subsection (1), attach to a 22
person, attaches instead to the State. 23
41 Confidentiality of information 24
(1) This section applies if a person obtains information or gains 25
access to a document in exercising any power or function 26
under this Act. 27
(2) The person must not do any of the following-- 28
(a) disclose to anyone else-- 29
(i) the information; or 30
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Safety in Recreational Water Activities Bill 2011
Part 5 General
[s 41]
(ii) the contents of or information contained in the 1
document; 2
(b) give access to the document to anyone else; 3
(c) use the information or document for any purpose. 4
Maximum penalty--100 penalty units. 5
(3) Subsection (2) does not apply to the disclosure of information, 6
or the giving of access to a document or the use of information 7
or a document-- 8
(a) about a person, with the person's consent; or 9
(b) that is necessary for the exercise of a power or function 10
under this Act; or 11
(c) that is made or given by the regulator or a person 12
authorised by the regulator if the regulator reasonably 13
believes the disclosure, access or use-- 14
(i) is necessary for administering, or monitoring or 15
enforcing compliance with, this Act; or 16
(ii) is necessary for the administration or enforcement 17
of another Act prescribed under a regulation; or 18
(iii) is necessary for the administration or enforcement 19
of another Act or law, if the disclosure, access or 20
use is necessary to lessen or prevent a serious risk 21
to public health or safety; or 22
(iv) is required for the exercise of a power or function 23
under a corresponding law; or 24
(d) that is required by any court, tribunal, authority or 25
person having lawful authority to require the production 26
of documents or the answering of questions; or 27
(e) that is required or authorised under a law; or 28
(f) to a Minister. 29
(4) A person must not intentionally disclose to another person the 30
name of an individual who has made a complaint in relation to 31
that other person unless-- 32
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Safety in Recreational Water Activities Bill 2011
Part 5 General
[s 42]
(a) the disclosure is made with the consent of the 1
complainant; or 2
(b) the disclosure is required under a law. 3
Maximum penalty--100 penalty units. 4
42 No contracting out 5
A term of any agreement or contract that purports to exclude, 6
limit or modify the operation of this Act or any duty owed 7
under this Act or to transfer to another person any duty owed 8
under this Act is void. 9
Division 2 Codes of practice 10
43 Approved codes of practice 11
(1) The Minister may approve a code of practice for the purposes 12
of this Act and may vary or revoke an approved code of 13
practice. 14
(2) A code of practice, or an instrument varying or revoking a 15
code of practice, has no effect unless the Minister gives notice 16
of its making. 17
(3) A notice under subsection (2) is subordinate legislation. 18
(4) A code of practice, or an instrument varying or revoking a 19
code of practice, commences on the later of the following-- 20
(a) the day the notice under subsection (2) commences; 21
(b) the day the code or instrument provides that it 22
commences. 23
(5) A code of practice expires 10 years after its commencement. 24
(6) As soon as practicable after approving a code of practice, or 25
varying or revoking an approved code of practice, the Minister 26
must ensure that notice of the approval, variation or 27
revocation is published in a newspaper circulating generally 28
throughout the State. 29
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Part 5 General
[s 44]
(7) The Minister must ensure that a copy of each code of practice 1
as in force from time to time and any document applied, 2
adopted or incorporated by the code of practice is made 3
available for inspection, without charge, during normal 4
business hours at each department office dealing with work 5
health and safety. 6
(8) A code of practice may be made available in written or 7
electronic form. 8
44 Use of codes of practice in proceedings 9
(1) This section applies in a proceeding for an offence against this 10
Act. 11
(2) An approved code of practice is admissible in the proceeding 12
as evidence of whether or not a duty or obligation under this 13
Act has been complied with. 14
(3) The court may-- 15
(a) have regard to the code as evidence of what is known 16
about a hazard or risk, risk assessment or risk control to 17
which the code relates; and 18
(b) rely on the code in determining what is reasonably 19
practicable in the circumstances to which the code 20
relates. 21
Note-- 22
See section 15 for the meaning of reasonably practicable. 23
(4) Nothing in this section prevents a person from introducing 24
evidence of compliance with this Act in a way that is different 25
from the code but provides a standard of recreational water 26
activities health and safety that is equivalent to or higher than 27
the standard required in the code. 28
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Part 6 Transitional provisions
[s 45]
Division 3 Regulation-making powers 1
45 Regulation-making powers 2
(1) The Governor in Council may make regulations under this 3
Act. 4
(2) Without limiting subsection (1), a regulation may make 5
provision for any matter stated in schedule 1 or otherwise 6
related to safety in recreational water activities. 7
(3) A regulation may-- 8
(a) prescribe fees for doing any act or providing any service 9
for the purposes of this Act; or 10
(b) prescribe a penalty for any contravention of the 11
regulations not exceeding 300 penalty units. 12
(4) Subsection (1) applies as provided under, and subsections (2) 13
and (3) do not limit, the Statutory Instruments Act 1992. 14
(5) For the Statutory Instruments Act 1992, to remove doubt it is 15
declared that -- 16
(a) a reference in sections 24 and 25 of that Act to 17
exceptions includes exemptions, and exceptions or 18
exemptions provided on terms or conditions (if any) 19
prescribed; and 20
(b) a reference in 30B(1)(b) of that Act to waiving payment 21
of a fee includes reducing or refunding the fee. 22
Part 6 Transitional provisions 23
46 Definition 24
In this part-- 25
repealed Act means the repealed Workplace Health and Safety 26
Act 1995. 27
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Part 6 Transitional provisions
[s 47]
47 Relationship with particular provisions of Work Health 1
and Safety Act 2011 2
The Work Health and Safety Act 2011, section 281(3) and (4) 3
does not prevent proceedings being commenced under this 4
Act against the person to whom that section applies solely for 5
any acts or omissions involved in the activity that happen after 6
the repeal. 7
48 Enforceable undertaking preserved 8
(1) Subsection (2) applies to a workplace health and safety 9
undertaking-- 10
(a) made under part 5 of the repealed Act; and 11
(b) made for an alleged contravention of the repealed Act 12
relating to recreational water activities health and safety; 13
and 14
(c) in force immediately before the repeal of the part. 15
(2) Part 5 of the repealed Act and any other provision of the 16
repealed Act relevant to the operation of part 5 of the repealed 17
Act continue to apply in relation to the undertaking as if they 18
had not been repealed. 19
(3) However, for subsection (2), sections 42F, 42H and 42I of the 20
repealed Act, as they existed before the repeal of part 5 of the 21
repealed Act, apply as if a reference to the chief executive 22
were a reference to the regulator. 23
(4) Also, the undertaking continues in force with necessary 24
changes, in relation to an act or omission of the identified 25
person happening after the repeal of part 5 of the repealed 26
Act, as if it were an undertaking accepted by the regulator 27
under applied WHS section 216(1) to the extent to which the 28
future behaviour assurance is material to compliance with this 29
Act. 30
(5) Subsection (4) does not apply to an act or omission that 31
constitutes a category 1 offence. 32
(6) Subsections (7) and (8) apply if, immediately before the 33
repeal of the repealed Act-- 34
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Safety in Recreational Water Activities Bill 2011
Part 6 Transitional provisions
[s 48]
(a) the chief executive has received an undertaking under 1
section 42DA of the repealed Act; and 2
(b) the undertaking is for an alleged contravention of the 3
repealed Act relating to recreational water activities 4
health and safety; and 5
(c) the chief executive has not made a decision whether to 6
accept the undertaking under section 42E of the 7
repealed Act. 8
(7) The chief executive must decide whether or not to accept the 9
undertaking. 10
(8) If the chief executive accepts the undertaking, subsections (2) 11
to (5), (9) and (12) apply to the undertaking. 12
(9) For subsection (4), a reference-- 13
(a) in the undertaking to the alleged contravention; or 14
(b) in the future behaviour assurance to a contravention of 15
the repealed Act; 16
is taken to include a reference to an alleged contravention or 17
contravention of this Act that corresponds to those 18
contraventions. 19
Note-- 20
Paragraph (a) is relevant to the continued operation of section 42F as it 21
existed before the amendment. Paragraph (b) is relevant if future 22
behaviour is expressed in terms of contraventions of particular sections 23
of the repealed Act. 24
(10) Despite subsections (1) to (9), the regulator may accept a 25
recreational water activity health and safety undertaking under 26
applied WHS part 11 for an alleged contravention of the 27
repealed Act relating to recreational water activities health 28
and safety. 29
(11) For subsection (10), a reference in applied WHS part 11 to 30
this Act is taken to include a reference to the repealed Act. 31
(12) In this section-- 32
alleged contravention of the repealed Act relating to 33
recreational water activities health and safety means an 34
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Safety in Recreational Water Activities Bill 2011
Part 6 Transitional provisions
[s 49]
alleged contravention constituted by an act or omission that, if 1
it happened after the commencement of this Act, would be a 2
contravention of this Act. 3
future behaviour assurance is the assurance about future 4
behaviour from the identified person included in the 5
workplace health and safety undertaking. 6
identified person means the identified person for the 7
undertaking. 8
49 Action by an inspector preserved 9
(1) A relevant power exercised by an inspector under the repealed 10
Act before the repeal-- 11
(a) if the context permits, continues to have effect for the 12
purposes of this Act; and 13
(b) if the context permits, is taken to have been exercised 14
under a corresponding provision of this Act. 15
(2) In this section-- 16
corresponding provision means a provision of this Act, 17
including an applied WHS provision, that corresponds to a 18
provision of the repealed Act under which the power 19
mentioned in subsection (1) was exercised. 20
relevant power means a power exercised in particular 21
circumstances under the repealed Act that could be exercised 22
under this Act in the same circumstances. 23
50 Improvement notice preserved 24
(1) This section applies to an existing improvement notice if the 25
improvement notice is for a contravention or likely 26
contravention of the repealed Act relating to recreational 27
water activities health and safety. 28
(2) The notice continues to be enforceable against the person to 29
whom it was given for a contravention of the repealed Act, 30
section 117(4) that happened before the repeal as if the 31
repealed Act had not been repealed. 32
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Part 6 Transitional provisions
[s 51]
(3) Also, the improvement notice continues in force and may be 1
enforced as if it were a improvement notice given to the 2
person under applied WHS section 117 for a contravention or 3
likely contravention of this Act that corresponds to the old 4
contravention. 5
(4) In this section-- 6
contravention or likely contravention of the repealed Act 7
relating to recreational water activities health and safety 8
means a contravention or likely contravention of the repealed 9
Act constituted by an act or omission that, if it happened after 10
the commencement of this Act, would be a contravention of 11
this Act. 12
existing improvement notice means an improvement notice-- 13
(a) given by an inspector under the repealed Act, section 14
117 for a contravention or likely contravention of the 15
repealed Act (the old contravention); and 16
(b) in force immediately before the repeal of the repealed 17
Act. 18
51 Prohibition notice preserved 19
(1) This section applies to an existing direction or prohibition 20
notice relating to recreational water activities health and 21
safety. 22
(2) The direction or prohibition notice continues in force and may 23
be enforced under the repealed Act, section 118(4), as if the 24
repealed Act had not been repealed. 25
(3) In this section-- 26
existing direction or prohibition notice relating to 27
recreational water activities health and safety means a 28
direction or prohibition notice-- 29
(a) that was given by an inspector under the repealed Act, 30
section 118 as in force immediately before the repeal; 31
and 32
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Part 6 Transitional provisions
[s 52]
(b) that could be given by an inspector under applied WHS 1
part 10, division 2 after the commencement of the 2
subdivision. 3
52 Reviews and appeals 4
(1) The repealed Act, part 11 continues to apply to a relevant 5
decision made under the repealed Act as if the repealed Act 6
had not been repealed. 7
(2) Another provision of this part that would have applied to a 8
matter if the final decision on a review or appeal under the 9
repealed Act, part 11 had been made before the repeal of the 10
repealed Act applies to the matter as if the final decision had 11
been made before the repeal. 12
(3) In this section-- 13
relevant decision means a decision made under the repealed 14
Act of a type that, after the commencement of this Act, could 15
be made under this Act in relation to recreational water 16
activities. 17
53 Relationship with transitional provisions under the Work 18
Health and Safety Act 2011 19
(1) This section applies if-- 20
(a) this part makes provision for the transition of a 21
particular matter from the repealed Act to that Act as if 22
it, or a provision of it, had not been repealed or to the 23
operation of this Act; and 24
(b) a provision in the Work Health and Safety Act 2011, part 25
17 makes provision for the transition of the same matter 26
from the repealed Act to that Act as if it, or a provision 27
of it, had not been repealed or to the operation of the 28
Work Health and Safety Act 2011. 29
(2) Despite section 4, the provision of this part applies to the 30
matter and not the provision of the Work Health and Safety 31
Act 2011, part 17. 32
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Safety in Recreational Water Activities Bill 2011
Part 7 Amendment of other legislation
[s 54]
(3) Subject to subsection (2), this part does not limit the Work 1
Health and Safety Act 2011, part 17 in relation to the 2
operation of the repealed Act relating to recreational water 3
activities health and safety. 4
Part 7 Amendment of other legislation 5
Division 1 Penalties and Sentences Act 1992 6
54 Act amended 7
This division amends the Penalties and Sentences Act 1992. 8
55 Amendment of s 5 (Meaning of penalty unit) 9
Section 5(1)(c), after `Electrical Safety Act 2002'-- 10
insert-- 11
`, the Safety in Recreational Water Activities Act 2011'. 12
Division 2 Work Health and Safety Act 2011 13
56 Act amended 14
This division amends the Work Health and Safety Act 2011. 15
57 Amendment of schedule 1, part 2 (Relationship with other 16
Acts) 17
(1) Schedule 1, section 6-- 18
renumber as schedule 1, section 7. 19
(2) Schedule 1, part 2, division 4-- 20
renumber as schedule 1, part 2, division 5. 21
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Part 7 Amendment of other legislation
[s 57]
(3) Schedule 1, section 7(1) (as renumbered), `divisions 1 to 3'-- 1
omit, insert-- 2
`divisions 1 to 4'. 3
(4) Schedule 1, part 2-- 4
insert-- 5
`Division 4 Recreational water activities 6
`6 Relationship with Safety in Recreational Water 7
Activities Act 2011 8
`(1) This section applies if-- 9
(a) this Act, in the absence of this section, would have 10
application in particular circumstances; and 11
(b) the Safety in Recreational Water Activities Act 2011, 12
section 16 also has application in the circumstances. 13
`(2) This Act does not have application in the circumstances to the 14
extent that the Safety in Recreational Water Activities Act 15
2011, section 16 has application. 16
Example for subsection (2)-- 17
Section 19 of this Act provides, among other matters, for circumstances 18
in which a duty is imposed on a person who conducts a business or 19
undertaking to ensure, so far as reasonably practicable, the health and 20
safety of persons mentioned in the section. 21
If the business or undertaking provides recreational water activities, the 22
Safety in Recreational Water Activities Act 2011, section 16, provides 23
that a duty is imposed on the person conducting the business or 24
undertaking to ensure it is conducted in a way that ensures the health 25
and safety of persons for whom the activities are provided. 26
Accordingly, the duty under section 19(1) of this Act continues to apply 27
to persons covered by section 19 (for example, workers) for whom the 28
recreational water activities are not being provided, and the Safety in 29
Recreational Water Activities Act 2011 applies to the persons for whom 30
the recreational water activities are provided.'. 31
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Safety in Recreational Water Activities Bill 2011
Schedule 1
Schedule 1 Regulation-making powers 1
section 45 2
1 Duties 3
(1) Matters relating to the way in which duties imposed by this 4
Act are to be performed. 5
(2) Matters relating to the regulation or prohibition of stated 6
activities or a stated class of activities to eliminate or 7
minimise risks to health and safety-- 8
(a) at places or a stated class of places where recreational 9
water activities are provided; or 10
(b) by a stated class of persons on whom duties or 11
obligations are imposed by this Act. 12
(3) Imposing duties on persons in relation to any matter provided 13
for under a regulation. 14
2 Incidents 15
Matters relating to incidents at a place where recreational 16
water activities are provided including-- 17
(a) regulating or requiring the taking of any action to avoid 18
an incident at the place or in the course of conducting a 19
business or undertaking; and 20
(b) regulating, requiring or prohibiting the taking of any 21
action in the event of an incident at the place or in the 22
conduct of a business or undertaking. 23
3 Plant, substances or structures 24
Matters relating to plant, substances or structures, including-- 25
(a) regulating the storage and handling of plant, substances 26
and structures; and 27
(b) regulating or requiring-- 28
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Safety in Recreational Water Activities Bill 2011
Schedule 1
(i) the examination, testing, labelling, maintenance or 1
repair of plant and structures; or 2
(ii) the examination, testing, analysis or labelling of 3
any substance. 4
4 Hazards and risks 5
Matters relating to hazards and risks including-- 6
(a) the prescribing of standards relating to the use of or 7
exposure to any physical, biological, chemical or 8
psychological hazard; and 9
(b) matters relating to safety cases, safety management 10
plans and safety management systems (however 11
described); and 12
(c) matters relating to measures to control risks. 13
5 Records and notices 14
(1) The keeping of records in relation to incidents. 15
(2) The keeping of records of stated activities, matters or things to 16
be kept by stated persons. 17
(3) The giving of notice of or information about stated activities, 18
matters or things to the regulator, an inspector or other stated 19
person. 20
6 Forfeiture 21
Matters relating to-- 22
(a) costs of forfeiture and disposal of forfeited things; and 23
(b) disposal of seized things and forfeited things. 24
7 Review of decisions 25
Matters relating to the review of decisions under a regulation 26
including-- 27
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Safety in Recreational Water Activities Bill 2011
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(a) prescribing decisions as reviewable decisions for the 1
purposes of applied WHS part 12 or for the purposes of 2
a regulation; and 3
(b) prescribing procedures for internal and external review 4
of decisions under a regulation; and 5
(c) conferring jurisdiction on a court or QCAT to conduct 6
reviews authorised under a regulation. 7
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Schedule 2 Dictionary 1
section 6 2
applied WHS, in relation to a provision, means that provision 3
of the Work Health and Safety Act 2011 as applied under this 4
Act for the purposes of this Act. 5
approved code of practice means a code of practice approved 6
under part 5, division 2. 7
category 1 offence see section 21. 8
category 2 offence see section 22. 9
category 3 offence see section 23. 10
condition includes limitation and restriction. 11
construct includes assemble, erect, reconstruct, reassemble 12
and re-erect. 13
corresponding law means-- 14
(a) a law of another State corresponding, or substantially 15
corresponding, to this Act; or 16
(b) a law of another State that is declared under a regulation 17
to be a corresponding law, whether or not the law 18
corresponds, or substantially corresponds, to this Act. 19
corresponding regulator means the holder of a public office, 20
or a public authority, of the Commonwealth, or of a State, 21
who or which is responsible for administering a 22
corresponding law. 23
dangerous incident, for part 3, see section 28. 24
disclose, in relation to information, includes divulge or 25
communicate to any person or publish. 26
document includes record. 27
engages in conduct means doing an act or omitting to do an 28
act. 29
health means physical and psychological health. 30
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Safety in Recreational Water Activities Bill 2011
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health and safety duty for recreational water activities see 1
section 20. 2
inspector means an inspector under section 33. 3
notifiable incident see section 26. 4
officer means-- 5
(a) an officer within the meaning of section 9 of the 6
Corporations Act 2001 of the Commonwealth other than 7
a partner in a partnership; or 8
(b) an officer of the State, Commonwealth or another State 9
within the meaning of applied WHS section 247; or 10
(c) an officer of a public authority within the meaning of 11
applied WHS section 252; 12
other than an elected member of a local government acting in 13
that capacity. 14
person conducting a business or undertaking see the Work 15
Health and Safety Act 2011, section 5. 16
place includes-- 17
(a) a vehicle, vessel, aircraft or other mobile structure; and 18
(b) any waters and any installation on land, on the bed of 19
any waters or floating on any waters. 20
plant includes-- 21
(a) any machinery, equipment, appliance, container, 22
implement and tool; and 23
(b) any component of any of those things; and 24
(c) anything fitted or connected to any of those things. 25
public authority means-- 26
(a) an authority or body, whether a body corporate or not, 27
established or incorporated for a public purpose by a law 28
of the State, another State or of the Commonwealth, 29
including a body corporate incorporated under a law of 30
the State, another State or of the Commonwealth in 31
which the State, the other State or the Commonwealth 32
has a controlling interest; or 33
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Safety in Recreational Water Activities Bill 2011
Schedule 2
(b) a GOC; or 1
(c) local government; or 2
(d) a statutory body under the Statutory Bodies Financial 3
Arrangements Act 1982. 4
reasonably practicable, in relation to a duty to ensure 5
recreational water activities health and safety, see section 15. 6
recreational water activities health and safety means health 7
and safety relating to the provision of recreational water 8
activities by a person conducting a business or undertaking. 9
recreational water activities health and safety undertaking 10
means an undertaking under applied WHS part 11. 11
recreational water activity see section 7. 12
regulator means the regulator under section 32. 13
serious injury or illness, for part 3, see section 27. 14
structure means anything that is constructed, whether fixed or 15
moveable, temporary or permanent, and includes-- 16
(a) buildings, masts, towers, framework, pipelines, 17
transport infrastructure and underground works (shafts 18
or tunnels); and 19
(b) any component of a structure; and 20
(c) part of a structure. 21
substance means any natural or artificial substance, whether 22
in the form of a solid, liquid, gas or vapour. 23
supply see the Australian Consumer Law (Queensland). 24
volunteer means a person who is acting on a voluntary basis 25
(irrespective of whether the person receives out-of-pocket 26
expenses). 27
waters means waters of any description at any place, whether 28
natural or constructed. 29
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Safety in Recreational Water Activities Bill 2011
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Examples of waters-- 1
river, stream, watercourse, canal, lake, rapids, waterfall, the sea, water 2
slide, pool 3
worker see the Work Health and Safety Act 2011, section 7. 4
© State of Queensland 2011
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