Internal review of decision: guidance for applicants

An internal review allows an eligible person to seek review of a range of decisions made by inspectors when dealing with WHS issues in workplaces, and by other officers about licences, registrations and authorisations.

The service is free.

The decisions that can be internally reviewed are listed in the Work Health and Safety Act 2012 and the Work Health and Safety Regulations 2012.

Decisions made under the Act and Regulations that are subject to internal review can also be found in ‘List of reviewable decisions (docx, 71.9 KB)’.

This guidance explains the principles of internal review and how internal reviewers will conduct reviews and make their decisions. An internal review seeks to be an authoritative and transparent process, which is consistent and independent of the original decision maker and their operational area.

Only an ‘eligible person’ can apply for an internal review of a decision. The categories of eligible persons are listed in the Act and Regulations, specific to the relevant provision of the Act or the Regulation the reviewable decision was made under.

Eligible persons include:

  • person to whom the notice or licence was issued
  • person with management or control of the workplace
  • whose interests are affected by the decision: for example, a person conducting a business or undertaking (PCBU), or a worker or a health and safety representative, or a person affected by a decision involving registrations, assessors or training.

Eligible persons for each specific category of decision are also listed in ‘List of reviewable decisions (docx, 71.9 KB)’.

When applying for a review, you will need to identify which category of eligible person you fall within.

Each application for internal review must be made in writing using the ‘Internal review application form (docx, 93.8 KB)’.

The essential details needed for a review to begin are on the application form. If the form is incomplete, you may be contacted to provide more information or the application may be returned to be completed.

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

Applications for review of an improvementnotice must be lodged:

  • the compliance date on the improvement notice, or
  • 14 days of the date you became aware of the notice, whichever is the earlier.

Applications for review of other notices and decisions made under the Act must be lodged within 14 days of the date you became aware of the notice or decision.

Applications for review of a decision made under the Regulations must be lodged within 28 days of the day on which the decision first came to your notice.

Under some circumstances, WorkSafe Tasmania 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 person who made the original decision cannot review that decision. Reviews are conducted by a person appointed by the regulator and are quite independent of the operational area of the original decision maker.

Reviewers aim to be consistent in their approach. They 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 parties, and deal with any real or perceived conflict of interest or bias. Reviewers must act independently and exercise their own 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.

The review considers:

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

The reviewer may contact you to seek clarification or additional information. In these circumstances, the 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).

A reviewer can also speak to the original decision maker and other relevant people, including experts if it’s a technical issue. They may also refer to written documents such as codes of practice or industry standards.

Sometimes a reviewer might arrange a meeting with you or a visit to the workplace if they think it’s necessary to help them make their decision and if it can be done within the timeframe.

The reviewer then decides, in light of all the material, what decision is the most appropriate, by:

  • the original decision, or
  • the original decision, or
  • aside the original decision and substituting another decision.

You will be advised in writing of the reviewer’s decision and the reasons for the decision.

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 a valid application is refused, you will be advised of your right to seek an external review by a court of competent jurisdiction.

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 which include:

  • are not an eligible person
  • application seeks review of a decision which is not reviewable
  • application has been determined previously (that is, you can only lodge one application per decision; your next step may be external review)
  • is a complaint about the behaviour of the decision maker, or
  • 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, given options to follow up your concerns through other avenues.

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.

However, decisions under the Regulations cannot be stayed by an application for a review, nor can one be requested.

You need to request a stay of the operation of a prohibition or non-disturbance notice or 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 itwithin 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 with a decision in writing of the outcome of that application.

If granted, a stay continues until either:

  • end of the prescribed period for applying for an external review of the internal review decision, or
  • application for external review is made, whichever is earlier.

If you are not satisfied with the decision made at internal review, you can apply to the Magistrates’ Court of Tasmania – Administrative Appeals Division for a review of the decision. As well, certain decisions made by the regulator, while not available for internal review, can be the subject of external review.

The Magistrates’ Court of Tasmania – Administrative Appeals Division has information and advice on the criteria and process for applying for an external review.