Review of decisions
Review of decisions – the WHS Act
Some decisions made by workplace health and safety inspectors and the workplace health and safety regulator can be reviewed under the Work Health and Safety Act 2011 (the WHS Act).
These are decisions on:
- provisional improvement notices (PINs) issued by health and safety representatives (HSRs)
- forfeiture and return of goods or things
- issue of improvement, prohibition or non-disturbance notices and subsequent notices
- variation or cancellation of notices
- extension of time to comply with improvement notices
- training of health and safety representatives
- work groups
- health and safety committees.
In addition, a number of decisions under the Work Health and Safety Regulation 2011 (the WHS Regulation) can be reviewed.
Workplace health and safety inspectors' decisions are initially subject to internal review. People dissatisfied with the internal review decision, or the decision of the regulator, may then apply for external review.
The list of reviewable decisions (PDF, 0.38 MB) outlines, for these decisions, who is eligible to apply for a review and who would undertake the external review.
Internal review – the WHS Act
An eligible person can apply to Workplace Health and Safety Queensland (WHSQ) for an internal review of an inspector's decision. Refer to the Internal review of decision – guide for applicants (PDF, 0.6 MB).
The application for internal review (PDF, 0.27 MB) must be made within 14 calendar days of the decision coming to the notice of the eligible person. However, with a decision to issue an improvement notice, an application must be made in the time stated in the notice or 14 calendar days, whichever is shorter.
WHSQ will appoint a person other than the person who made the original decision, to review the decision.
The reviewer must make a decision within 14 calendar days of receiving the application for review. The reviewer can:
- confirm or vary the original decision
- substitute the original decision for another decision.
The reviewer can seek further information from the applicant. If this happens, the 14 calendar day period is paused until the applicant provides the information to the reviewer.
When requesting further information from the applicant, the reviewer must give the applicant at least seven days to provide the information.
Once the reviewer makes the decision, they must notify the applicant of the decision and the reasons for the decision in writing. The reasons must set out the reviewer's findings (including what happened and when) and the evidence on which those findings were based.
Once an application for a review is made the original decision cannot be enforced (a stay is granted). This applies except in the case of a prohibition notice or a non-disturbance notice.
Where the original decision involves the issue of a prohibition notice or non-disturbance notice, it is up to the reviewer to determine whether or not the original decision will be enforced pending the outcome of the review. This decision can be made at the reviewer's own initiative or the person seeking the review can also apply for no action to be taken. Such a decision must be made within one working day after receipt of the application.
This procedure (PDF, 0.45 MB) sets out the Office of Industrial Relations position for managing extension requests and outlines the process to be undertaken to determine a request to lodge an application for review outside the prescribed time limit.
External review – the WHS Act
An eligible person may apply to an external review body for a review of:
- decisions of the internal reviewer
- the original decision of the regulator.
A person applying for external review has a right to obtain the decision and the reasons for the decision if they have not already been given these documents.
The application for review must state the grounds for seeking review and the facts that are being relied on for the review.
From the day the applicant received or became aware of the original decision, an application for external review must be made within:
- 30 calendar days to the Queensland Industrial Relations Commission (QIRC)
- 28 calendar days to the Queensland Civil Administrative Tribunal (QCAT).
There are several outcomes of a review by an external review body. QCAT and QIRC may:
- confirm or vary the original decision
- set aside the original decision and substitute another decision
- set aside the original decision and return the matter to the decision-maker with appropriate directions.
Review of decisions – the ES Act
Internal review – the ES Act
A person whose interests are affected by an original decision may apply to the Electrical Safety Office (ESO) for an internal review of the regulators or inspector's decision. Refer to the Internal review of decision - guide for applicants (PDF, 0.6 MB).
The application for internal review (PDF, 0.27 MB) must be supported by enough information to enable the reviewer to decide the application and must be made within 14 calendar days of the applicant receiving notice of the original decision or a longer period if the review entity allows.
An application for a review of decision to forfeit a thing must be made within 28 days after the applicant receives notice of the original decision or a longer period if the review entity allows.
The reviewer must make a decision within 14 calendar days of receiving the application for review. The reviewer can:
- confirm or vary the original decision
- substitute the original decision for another decision.
Once the reviewer makes the decision, they must notify the applicant of the decision and the reasons for the decision in writing (information notice). The notice must set out the reasons for the decision:
- all rights of review or appeal under the ES Act
- the period in which any review or appeal must be started
- how rights of review or appeal are to be exercised whether a stay of decision may be applied.
Once an application for a review is made the original decision cannot be enforced (a stay is granted). This applies except in the case of an electrical safety protection notice (ESPN) or a non-disturbance notice.
Where the original decision involves the issue of an ESPN or non-disturbance notice, it is up to the reviewer to determine whether or not the original decision will be enforced pending the outcome of the review. This decision can be made at the reviewer's own initiative or the person seeking the review can also apply for no action to be taken. Such a decision must be made within one working day after receipt of the application.
An internal review of decision is not available for disciplinary decisions made by the electrical licensing committee. External reviews of these decisions must be made to the QCAT.
This procedure (PDF, 0.45 MB) sets out the Office of Industrial Relations position for managing extension requests and outlines the process to be undertaken to determine a request to lodge an application for review outside the prescribed time limit.
External review – the ES Act
A person whose interests are affected by a disciplinary decision, original regulator decision, original decision or review decision may apply, as provided for under the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), for a review of the decision.
A person applying for external review has a right to obtain the decision and the reasons for the decision if they have not already been given these documents. The application for review must state the grounds for seeking review and the facts that are being relied on for the review.
From the day the applicant received or became aware of the original decision, an application for external review must be made within 28 calendar days to QCAT.
There are several outcomes of a review by an external review body. QCAT may:
- confirm or vary the original decision
- set aside the original decision and substitute another decision
- set aside the original decision and return the matter to the decision-maker with appropriate directions.
Queensland Ombudsman
A person applying for external review may also have a right to seek that review by the Queensland Ombudsman where there is no right of external review by QCAT or QIRC.
An application for review by the Queensland Ombudsman should be made within 12 months of the day the applicant received or became aware of the original decision.
If the application for review is accepted, the Queensland Ombudsman will try to informally resolve the complaint with the agency concerned and where possible, negotiate a mutually satisfactory outcome.
Outcomes from a Queensland Ombudsman review may be:
- recommendations to the agency to rectify any unlawful, unfair or unreasonable actions in making a decision
- recommendations aimed at improving the agency's policies and practices.