Reviewable decisions

In certain circumstances the decisions made by WorkSafe ACT can be reviewed. There are two types of review - internal and external.

Internal review

Internal review allows an eligible person to seek review of a range of decisions made by inspectors when dealing with health and safety issues in workplaces and by other officers in relation to licences, registrations and authorisations.

The service is free.

Who can apply for an internal review?

An eligible person can apply for internal review of certain decisions. Eligible persons include the person to whom the notice or licence was issued, the person with management or control of the workplace and persons whose interests are affected by the decision, such as a person conducting a business or undertaking, a worker, or a health and safety representative.

Table 1 summarises legislative references for reviewable decisions under law administered by WorkSafe ACT. Always refer to the full legislative section before proceeding with an internal review request to ensure eligibility.

Lodgement timeframes

Applications for review of notices and decisions made under the administration of WorkSafe ACT must be made within the timeframes listed in the legislation.

Under some circumstances WorkSafe ACT may permit lodgement outside these timeframes. The reviewer will consider a number of factors including your explanation for the late lodgement, whether it would adversely affect anyone else if the application were to be accepted, and the views of the original decision maker.

The timeframe for the review will not start until the completed, valid application is received. You can withdraw your application at any time before a decision is made by the internal reviewer.

Internal reviewers

The person who made the original decision cannot review that decision.

Reviewers will follow best practice in decision making to ensure that their decision is correct in law and the facts are established based on evidence.  All decisions must provide for natural justice (or procedural fairness) to all the parties, and deal with any real or perceived conflict of interest or bias. Reviewers must act independently and exercise judgment while having regard to the legislation, the regulator's policies and procedures and where relevant, accepted technical standards or guidance material. They must provide written reasons for their decisions within a strict timeframe.

Multiple applications

Sometimes more than one eligible person may apply for internal review of the same decision. Where possible, those applications will be considered by the same reviewer.

If an internal review has already been completed, the reviewer will decide whether another application on that same original decision is accepted. This will depend on the nature of the application and the review decision already made.

Where an application is refused, you will be advised of your right to seek an external review by the ACT Civil and Administrative Tribunal (see section later in this factsheet).

Invalid applications

If an application is invalid, it cannot be determined by the internal review process. Insufficient information does not itself make the application invalid. An application can be invalid for a number of reasons including if:

· you are not an eligible person

· the application seeks review of a decision which is not reviewable

· your application has been determined previously (you can only lodge one application in relation to one decision and your next step may be external review)

· it is a complaint about the behaviour of the decision maker

· there is disagreement with what the compliance requirements of the reviewable decision look like

You will be advised if the application is invalid and, if appropriate, be given options to follow up your concerns through other avenues.

Stays of reviewable decisions

Improvement notices are automatically stayed (or suspended) once an application for a review is lodged. That means they do not operate and can't be enforced during the internal review period and until a decision is made.

For a prohibition or non-disturbance notice to be stayed you need to request a stay of the operation, or alternatively the reviewer can decide to stay the operation of the notice on their own initiative.

On application for the stay, a reviewer must either grant or refuse it within one working day of the request being made. If a decision is not made within that time, the stay is automatically granted.

The reviewer will provide an applicant who wants a notice stayed (or suspended) with a decision in writing of the outcome of that application.

If granted, a stay continues until either:

· the end of the prescribed period for applying for an external review of the internal review decision

· an application for external review is made, whichever is earlier

Decisions under the Work Health and Safety Regulation 2011, Dangerous Substances Act 2004, Workers Compensation Act 1951 and Workers Compensation Regulation 2002 however cannot be stayed by an application for a review, nor can one be requested.

External review

If you are not satisfied with the decision made by an internal reviewer, an eligible person can apply to the ACT Civil and Administrative Tribunal (ACAT) for a review of the decision.

ACAT is an independent body that hears and determines a range of cases in the ACT.

ACAT has jurisdiction and powers under the ACT Civil and Administrative Tribunal Act 2008 however other legislation (authorising law), also gives them jurisdiction over additional matters. The Acts administered by WorkSafe ACT listed in table 1 provide authorising legislation for the review of some decisions by ACAT. Additionally the Long Service Leave Act 1976 has provisions for external review of decisions.

ACAT has information and advice on the criteria and process for applying for an external review.

Table 1 – Reviewable decisions legislative references