ACT Work Health and Safety Commissioner 

Act: Work Health and Safety Act 2011 (ACT).¹

Established: In schedule 2, not in the Act's parts — and that is the first thing to know about this one. Section 2.18 of schedule 2 provides that "The Office of the Work Health and Safety Commissioner is established", and s 2.19 constitutes the office as the WHS commissioner plus the staff of the office. A student reading the Act's parts will not find the commissioner mentioned at all: the operative provisions speak only of "the regulator", and it is the dictionary that makes the commissioner the regulator for this Act. So the answer to "which provision creates this body?" is a schedule, and the answer to "who exercises these powers?" is a defined term.

Purpose: The WHS Commissioner regulates and enforces compliance with work health and safety duties in the ACT, operating through WorkSafe ACT. The Act is part of the harmonised model WHS laws adopted (with local variations) in most Australian jurisdictions, so the substantive duties a student learns under one jurisdiction's WHS Act largely transfer to another's — but the regulator's name and specific procedural details still need checking per jurisdiction.

Where the authority sits

The office's functions (sch 2 s 2.20) are to promote understanding of and compliance with the Act, to undertake research and develop educational programs, and to advise the Minister. The commissioner's own functions (sch 2 s 2.22) sit in addition to the functions of the regulator under s 152 — so the powers a fact pattern turns on are usually the regulator's, reached through the definition rather than through anything naming the commissioner.

Powers conferred under the Act

The Commissioner's inspectors can enter workplaces, issue improvement and prohibition notices, and refer serious contraventions for prosecution. Codes of practice issued under the Act are not law themselves but are admissible as evidence of what is reasonably practicable to comply with a duty.

Is it a prosecuting authority?

This is the one to be careful with in this family. Unlike the oversight offices, the WHS regulator sits inside an enforcement scheme: inspectors issue notices, and serious contraventions are referred for prosecution. Whether the commissioner prosecutes, or refers to a separate prosecuting authority, is a question to answer from the Act's enforcement provisions and the local arrangements — not from the word "regulator", and not by analogy to another jurisdiction's WHS regulator, whose harmonised duties are the same but whose enforcement arrangements need not be.

How it relates to the other Commonwealth and ACT bodies

WHS regulation in the ACT is separate from the Commonwealth's Fair Work Ombudsman, which enforces the Fair Work Act's employment standards (pay, leave, unfair dismissal) rather than physical workplace safety — a workplace injury points to the WHS Commissioner; an underpayment points to the Fair Work Ombudsman.

Self-check

• Have I identified the WHS Commissioner's establishing Act and its harmonised-scheme context?
• Have I distinguished WHS regulation from the Commonwealth Fair Work Ombudsman's separate employment-standards enforcement role?