Internal review of inspector and regulator decisions

What is an internal review?

The Work Health and Safety legislation administered by SafeWork NSW allows an eligible person (as defined by legislation) who is dissatisfied with an eligible decision (defined by legislation) made by an Inspector or Authorised Officer to request that the decision be internally reviewed.

An internal review is a systematic way of looking at the merits of an original decision and allows the person affected by the decision to seek an independent opinion from an officer who was not involved in making the original decision.

The SafeWork Reviewable Decisions team conducts the internal reviews of Inspector and Regulatory decisions made by SafeWork NSW.

The written review application will be evaluated, along with any relevant material submitted or obtained, giving proper, genuine and realistic consideration to the application.

Reviews are conducted as per the statutory requirements of the relevant legislation and within an appropriate administrative law framework.

How to request an internal review of a penalty notice?

A penalty notice may be issued for certain serious offences, for example removing asbestos without a licence.

Because they do not involve court proceedings, they are a quicker option for dealing with offences under WHS laws or the workers compensation legislation.

If you're issued with a penalty notice, you can choose to pay it (which will finalise the matter) or you may choose to have the matter dealt with by the court.

We do not set the penalty notice amount. The amount is specified in legislation and is much lower than the maximum penalty that may be issued by the court.

To request a review of a penalty, in the first instance is to be submitted to Revenue NSW.

How to request an internal review of an inspector or regulator decision?

The application is to provide the reasons why the applicant believes the original decision was unreasonable, unfair or incorrect and include relevant material supporting the review application.

The application needs to be:

• in writing and include an Australian address for the applicant
• emailed to reviews@safework.nsw.gov.au or posted to PO Box 592, Richmond NSW 2753

Alternatively, you can complete an internal review application online form.

Time limits on the internal review process

An internal review application relating to a decision under the Work Healthy and Safety Regulation is to be submitted within 28 days of receipt of a notice of the original decision and the review will be determined within 21 days.

An internal review application relating to a decision under the Work Health and Safety Act is to be submitted within 14 days of receipt of the notice and the review will be determined within 14 days.

Under certain circumstances, extension of time may be allowed or agreed to for either the person to submit the application or the review to be completed.

Stays of reviewable decisions

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

A request to stay the operation of a Prohibition or Non-Disturbance notice must be made or the Internal Reviewer can decide to stay the operation of the notice on their own initiative.

On request for the stay, an Internal 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 Internal 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, or an application for external review is made, whichever is earlier. Decisions under the regulations cannot be stayed by an application for a review, nor can one be requested.

What happens in the review process?

An acknowledgement will be sent to the applicant confirming receipt of the review application.

hen the review application has been received by the SafeWork Reviewable Decisions team, the application will be allocated to an Internal Reviewer who was not involved in the process of making the decision under review.

The review considers all the material that was available to the original decision maker at the time the decision was made and any new, relevant information that has become available since that decision, including information provided by you.

The Internal Reviewer may contact you to seek clarification or additional information. In these circumstances the Internal Reviewer will indicate the timeframe for you to provide the information and the review process stops until you provide the information or the timeframe expires (whichever occurs first). An Internal Reviewer can also speak to the original decision-maker, as well as other relevant people, including experts if it is a technical issue. Sometimes a Internal Reviewer might arrange a meeting with you or a visit to the workplace if they think it is necessary to help them make their decision and if it can be done within the timeframe.

Following the internal review of a decision, the Internal Reviewer must make a decision to either Confirm (affirm) or Vary or Set aside (withdraw / cancel) the decision and replace with a new decision made by the Internal Reviewer.

The applicant will receive a review determination letter and a Statement of Reasons that outlines the review process and how the Internal Reviewer reached their determination. The original decision maker will also be provided this information.

If you do not agree with the outcome of the internal review

If an eligible person is dissatisfied after the internal review, they have the right to seek external review of the original decision with the:

• NSW Civil & Administrative Tribunal (NCAT) for decisions relating to Work Health and Safety Regulation or licence/permits. Telephone: 1300 006 228. This request must be made within 28 days of the date of the Internal Review Determination letter.
• Industrial Relations Commission of NSW (IRC) for decisions relating to Work Health and Safety Act. This request must be made within 14 days of the date of the Internal Review Determination letter.