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Office of Fair and Safe Work Queensland
Department of Justice and Attorney-General
Home > Electrical Safety > Law and penalties > Compliance and enforcement framework

Compliance and enforcement framework

Enforcement Policy
Key principles
Options for enforcement
Investigations Policy
Investigations priorities
Prosecution and disciplinary policy
Enforceable undertakings
Appeals
Administrative matters
Definitions

The Queensland Government is committed to ensuring healthier and safer workplaces. To achieve this aim the Electrical Safety Office Queensland (ESO) administers the Electrical Safety Act 2002 (PDF, 788 KB) (the Act) and other subordinate legislation with an inspectorate located throughout the state.

This enforcement framework outlines the enforcement options employed by the ESO as well as investigation and prosecution policies. The appropriate use of a comprehensive range of enforcement strategies will encourage greater compliance with legislative requirements and enhanced prevention of death and injury that can be caused by electricity.

Enforcement Policy

The ESO may employ a number of options to facilitate compliance with the Act.

When people or organisations fail to meet their obligations under the Act inspectors may use a range of compliance and enforcement options depending on the most appropriate approach.

The ESO will use promotion, education and advice to encourage compliance with the provisions of the legislation

Where these methods do not result in compliance, this will generally be secured through the use of formal notices and directions, and other enforcement methods provided for under the legislation.

Prosecution is considered if formal notices and directions do not result in compliance with the legislation.

However, in some circumstances, prosecution will be considered as the only appropriate response to the offender and the only means of deterring others from contravening the legislation

An inspector may visit a workplace either by appointment or unannounced. While some inspector visits may be arranged in advance with the employer, there are many circumstances when prior warning will not be given. Such circumstances may include but are not limited to:

Rationale
The main objective of any enforcement strategy is to detect and deal with non-compliance. The purpose of ensuring compliance with the Act is to prevent the death and injury of persons or destruction of or damage to property caused by electricity, and in doing so eliminate the human cost to individuals, families and the community.

A comprehensive, consistent and transparent enforcement strategy will encourage greater compliance with electrical safety legislative requirements and enhance prevention of injury and property damage.

Key principles

Key principles underpinning Queensland’s electrical safety enforcement efforts are:

Targeting
To effectively administer electrical safety throughout Queensland, resources must be focused on achieving the greatest impact.

The ESO may target particular activities which create the most serious electrical safety risks; where hazards are least well-controlled; or where an enforcement outcome is of importance in preventing reoccurrence or raising awareness in industry or the wider community.

Consistency
The ESO will endeavour to ensure that similar circumstances at workplaces lead to similar enforcement outcomes.

Transparency
The ESO is committed to fair, open and transparent dealings with obligation holders.

In adopting a transparent approach, the ESO endeavours to assist obligation holders and others in understanding what is expected of them and what they should expect from the ESO.

Proportionality
Enforcement action will be proportionate to electrical risks and the seriousness of an injury when it occurs. More serious risks will warrant more severe enforcement action. An organisation’s previous electrical track record and previous interventions by the inspectorate may also influence the appropriate enforcement options.

Options for enforcement

When people fail to meet their obligations under the Act, electrical safety inspectors may use a range of enforcement options to secure compliance including:

Inspectors are skilled in determining the best enforcement options to use in a given situation in order to offer the most advantageous electrical safety outcome. Often the most appropriate response is a combination of these tools. For instance, information or advice may be provided at the same time as issuing notices; multiple notices may be issued; or notices may be followed by prosecution. The ESO will consider which enforcement tools are appropriate in the circumstances after assessing:

Verbal direction
A verbal direction in the context of the enforcement policy can only be given in situations where the minor breach can be rectified and inspected prior to the electrical safety inspector leaving the site.

Improvement notice
Where an electrical safety inspector identifies a contravention of the Act or its subordinate legislation and the circumstance does not or is not likely to cause an immediate electrical risk, the electrical safety inspector will issue an improvement notice. If the improvement notice is not complied with, the inspector has the following options:

An inspector may return to a workplace to monitor an obligation holder’s compliance with an improvement notice.

Electrical safety protection notice
An electrical safety inspector will issue an electrical safety protection notice to a person in control of any activity or electrical equipment if they have a reasonable belief that circumstances are causing, or are likely to cause an immediate electrical risk to persons or property.

A ‘person in control’ is the person who has, or reasonably appears to have, authority to exercise control over the activity. It is not a requirement that the person in control has contravened or is likely to contravene the Electrical Safety Act 2002 (PDF, 788 KB).

The inspector may also disconnect, or as part of their direction, require the person in control to disconnect electrical equipment from its supply of electricity to the extent the inspector considers necessary to eliminate electrical risk.

Unsafe equipment notice
An unsafe equipment notice will be issued to the owner of electrical equipment if the inspector reasonably believes the electrical equipment is so defective or hazardous that it is likely to cause a serious electrical incident (as defined in section 11 of the Act). The notice may require the owner to make the equipment harmless or incapable of operation.

An unsafe equipment notice and an electrical safety protection notice will be issued for one item of equipment where the person in control is not the owner.

Infringement notices
An infringement notice (sometimes referred to as an ‘on-the-spot fine’) may be issued for offences against the Act or the Electrical Safety Regulation 2002 (PDF, 1 MB) (the Regulation) listed in Schedule 5 of the State Penalties Enforcement Regulation 2000.

When an inspector issues an infringement notice it has an immediate punitive effect. Infringement notices are not intended to be a substitute for electrical safety protection notices or improvement notices. In most cases infringement notices will be issued along with other notices.

Seizure
The Act empowers electrical safety inspectors to seize a thing if they reasonably believe it may be evidence of an offence under the Act or if it has just been used in committing an offence, or seize unsafe electrical equipment if it places persons or property at electrical risk. Alternatively, a notice of requirement may be issued to require the person in control to take the thing to a stated place by a stated time.

Electrical safety notification
The chief executive of the department may issue an electrical safety notification to designers, manufacturers, importers or suppliers if there are sufficient reasonable grounds that the supply or use of the electrical equipment or the type of electrical equipment is putting or will put persons or property at electrical risk. A request from the ESO for voluntary action to remove the risk may be made. The electrical safety notification may among other things stipulate repair, replacement, removal or recall of the electrical equipment.

The issuing of the electrical safety notification creates an enforceable obligation under section 35 of the Act and this can only be appealed through the Industrial Court.

Prosecution
Action to prosecute may be taken where an electrical safety inspector has obtained sufficient evidence to establish a case to answer, there is reasonable prospect of a conviction and it is judged to be in the public interest.

For further information refer to the prosecution and disciplinary policy.

Investigations Policy

Investigations of reported electrical incidents, targeted events and complaints are undertaken to:

Investigations priorities

Type one event
Type one electrical incidents will be subject to a comprehensive investigation unless there is a valid reason not to undertake the investigation. Examples of when a comprehensive investigation may not proceed are:

Type two event
A Type two electrical incident is a matter which would require a comprehensive investigation and a prosecution in the Industrial Magistrates Court and/or the matter being referred to the Electrical Licensing Committee for disciplinary action.

Type three event
Intervention will occur with complaints involving significant risk to electrical safety in order to determine the validity of the complaint and to assist in the resolution of the matter, including taking appropriate enforcement action.

Type four event
The ESO will contact the workplace and/or the person who has made the complaint to determine if there is any intervention warranted to assist in the resolution of the matter.

Other non-compliances
Other issues of minor non-compliance are dealt with by inspectors using appropriate enforcement options e.g. improvement notices or electrical safety protection notices.

Timeframes
The ESO seeks to complete comprehensive investigations within the statutory time limits. Less serious or complicated investigations will be dealt with more quickly.

Prosecution and disciplinary policy

Prosecution assists prevention by deterring others from committing electrical safety offences. Publishing the outcomes of successful prosecutions draws attention to the consequences of electrical safety violations and the need for real and sustainable improvements. The ESO aims to ensure prosecution activity is strategically focussed and targeted for maximum impact. That is, there will be a focus on cases that are high value, high profile and high impact.

Decision to prosecute
A decision to prosecute is based on an assessment of the nature of the non-compliance, the obligation holder’s performance and the ESO’s priorities.

The three key issues to be considered before legal action is taken are:

Generally, prosecution action is likely for a Type one or two electrical event or a targeted investigation.

Other circumstances where prosecution action may be considered are:

Infringement Notice
A person issued with an infringement notice may elect to have the matter heard in the Industrial Magistrates Court.

Case to answer
Before initiating a prosecution the matter will be reviewed to ensure there is sufficient evidence to support a case to answer.

Two key issues will be considered in determining whether a case exists:

Reasonable prospect of conviction
Being charged with an offence may cause emotional and economic stress. Therefore, it is neither fair nor just to instigate or continue a legal proceeding where there is little or no prospect of conviction.

A prosecution ESO believes has no reasonable prospect of resulting in a conviction will not be instigated or continued unless further prompt investigation will remedy the deficiency in evidence. This does not mean that only those cases perceived as being ‘strong’ are prosecuted. It is the Court that should decide the resolution of disputed facts, not the ESO. However, the ESO do have a responsibility to exercise appropriate discretions and judgement in the assessment of the prospect of conviction.

The public interest
It is in the public interest that the safety of workers and the public be protected and enhanced. A decision to prosecute involves a principled consideration of a number of factors in determining whether to prosecute.

Factors that may be considered include:

Disciplinary action
Section 88 of the Act sets down the functions of the Electrical Licensing Committee. A major function is to take necessary disciplinary action against holders of electrical licenses and previous holders of electrical contractor licenses. Sections 106 and 107 establish the framework for taking disciplinary action. Where an inspector believes that grounds exist for disciplinary action the matter can be referred to the ESO for Electrical Licensing Committee for consideration.

A decision to refer a licence holder for disciplinary action is based on an assessment of whether a ground exists and whether each element of the relevant ground can be proven. Before referring the licence holder to the Electrical Licensing Committee, the ESO will consider:

To effectively target and utilise enforcement resources, disciplinary action may be the most appropriate mechanism to protect workers and the public from the continued unsafe work practices of licence holders.

The Act provides that taking disciplinary action does not prevent prosecution of the holder for an offence arising from the facts or circumstances on which the taking of disciplinary action is based. It is possible for a matter to proceed to prosecution as well as to disciplinary action.

Enforceable undertakings

The Act also introduces an alternative to prosecution – electrical safety undertakings (‘enforceable undertaking’). This is a written, legally-binding document signed by a person who the chief executive alleges has contravened the legislation. The undertaking identifies facts and circumstances of the alleged contravention and includes an assurance from the person about future behaviour. For example, a company might agree to provide publicity to deter other offenders or introduce programs to prevent future breaches.

Maximum penalties of up to $500,000 are provided for contravening an enforceable undertaking.

Appeals

The purpose of appeals are to ensure that offence provisions are justly and correctly applied and the decision is appropriate in the circumstances. Sections 172 – 177 of the Act set down the conditions relating to appeals. The primary concern in a decision to appeal is whether the applicable law has been correctly stated and applied.

Where it appears there is an error at law or the penalty imposed appears to be inadequate in the circumstances, the ESO will consider an appeal against the decision. Appeals are heard in the industrial court. This action will only be taken when:

Section 186(2) of the Act relates to an appeal against a prosecution for an offence against the Act. If a person is dissatisfied with a decision of an industrial magistrate, any appeal against that decision must be made to the industrial court.

Administrative matters

The prosecution for an offence against the Act must be commenced by complaint of an inspector or someone authorised by the Minister or chief executive.

For further information call 1300 650 662.

Definitions

Bodily harm
Bodily harm means any bodily injury which interferes with health or comfort.

Comprehensive investigation
A comprehensive investigation is one where the potential outcome may be prosecution or disciplinary action.

Grievous bodily harm
Grievous bodily harm means:

  1. the loss of a distinct part or an organ of the body
  2. serious disfigurement
  3. any bodily injury of such a nature that if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

Type one electrical event
Electrical incident causing death or grievous bodily harm.

Type two electrical event

Type three electrical event

Type four electrical event

Last updated 22 July 2009