Part 9Securing compliance

Part 9—Securing compliance Division 1—Appointment of inspectors 156—Appointment of inspectors (1) The regulator may, by instrument, appoint any of the following as an inspector: (a) a public sector employee under the Public Sector Act 2009; (b) the holder of a statutory office; (c) a person who is appointed as an inspector or authorised officer under a corresponding WHS law; (d) a person in a prescribed class of persons. (2) Without limiting subsection (1), the following persons will be taken to have been appointed as inspectors: (a) in relation to mines to which the Mines and Works Inspection Act 1920 applies—an inspector of mines under that Act; (b) in relation to operations to which the Offshore Minerals Act 2000 applies—an inspector under that Act; (c) in relation to operations to which the Petroleum and Geothermal Energy Act 2000 applies—an authorised officer under that Act; (d) in relation to operations to which the Petroleum (Submerged Lands) Act 1982 applies—an inspector under that Act; (e) any other person who may exercise statutory powers under another Act brought within the ambit of this subsection by the regulations. 157—Identity cards (1) The regulator must give each inspector an identity card that states the person's name and appointment as an inspector and includes any other matter prescribed by the regulations. (2) An inspector must produce his or her identity card for inspection on request when exercising compliance powers. (3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable. 158—Accountability of inspectors (1) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector's functions. (2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter and the regulator considers that the inspector should not deal, or should no longer deal, with the matter. 159—Suspension and ending of appointment of inspectors (1) The regulator may suspend or end the appointment of an inspector. (2) A person's appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector. Division 2—Functions and powers of inspectors 160—Functions and powers of inspectors An inspector has the following functions and powers under this Act: (a) to provide information and advice about compliance with this Act; (b) to assist in the resolution of— (i) work health and safety issues at workplaces; and (ii) issues related to access to a workplace by an assistant to a health and safety representative; and (iii) issues related to the exercise or purported exercise of a right of entry under Part 7; (c) to review disputed provisional improvement notices; (d) to require compliance with this Act through the issuing of notices; (e) to investigate contraventions of this Act and assist in the prosecution of offences; (f) other functions or powers conferred by the regulations. 161—Conditions on inspectors' compliance powers An inspector's compliance powers are subject to any conditions specified in the instrument of the inspector's appointment. 162—Inspectors subject to regulator's directions (1) An inspector is subject to the regulator's directions in the exercise of the inspector's compliance powers. (2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter. Division 3—Powers relating to entry Subdivision 1—General powers of entry 163—Powers of entry (1) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace. (2) An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace. (3) If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately. (4) An inspector may enter any place if the entry is authorised by a search warrant. An inspector may enter residential premises to gain access to a workplace (see section 170(c)). 164—Notification of entry (1) An inspector may enter a place under section 163 without prior notice to any person. (2) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry: (a) the relevant person conducting a business or undertaking at the workplace; (b) the person with management or control of the workplace; (c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace. (3) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay. relevant person conducting a business or undertaking means the person conducting any business or undertaking in relation to which the inspector is exercising the powers of entry. 165—General powers on entry (1) An inspector who enters a workplace under section 163 may do all or any of the following: (a) inspect, examine and make inquiries at the workplace; (b) inspect and examine anything (including a document) at the workplace; (c) bring to the workplace and use any equipment or materials that may be required; (d) take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings); (e) take and remove for analysis a sample of any substance or thing without paying for it; (f) require a person at the workplace to give the inspector reasonable help to exercise the inspector's powers under paragraphs (a) to (e); (g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of this Act. (2) A person required to give reasonable help under subsection (1)(f) must not, without reasonable excuse, refuse or fail to comply with the requirement. (3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse. 166—Persons assisting inspectors (1) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 163 to assist the inspector if the inspector considers the assistance is necessary. (2) The assistant— (a) may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise compliance powers; but (b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant. (3) Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector. Subdivision 2—Search warrants 167—Search warrants (1) An inspector may apply to a magistrate for a search warrant for a place. (2) Subject to subsection (6), the application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. The magistrate may require additional information supporting the application to be given by statutory declaration. (4) The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and (b) the evidence is, or may be within the next 72 hours, at the place. (5) Subject to subsection (6), the search warrant must state— (a) that a stated inspector may, with necessary and reasonable help and force, enter the place and exercise the inspector's compliance powers; and (b) the offence for which the search warrant is sought; and (c) the evidence that may be seized under the search warrant; and (d) the hours of the day or night when the place may be entered; and (e) the date, within 7 days after the search warrant's issue, the search warrant ends. (6) An inspector may apply to a magistrate for a search warrant by telephone, fax or other prescribed means if the inspector considers the urgency of the situation requires it and, in such a case, the following provisions will apply: (a) the magistrate may complete and sign the warrant without the provision of sworn evidence and without a written application that states the grounds on which the warrant is sought if the magistrate is satisfied that there are reasonable grounds for issuing the warrant urgently; (b) if the magistrate completes and signs a warrant under paragraph (a), the magistrate must then tell the inspector— (i) the terms of the warrant (as contemplated by subsection (5)); and (ii) the date on which, and the time at which, the warrant was signed; (c) if steps are taken under paragraph (b), the inspector must then— (i) complete a form of warrant in the same terms as the warrant signed by the magistrate and write on the form— (A) the name of the magistrate; and (B) the date on which, and the time at which, the warrant was signed; and (ii) send the magistrate the completed form of warrant not later than the day after the warrant is executed or comes to an end; (d) a form of warrant completed by an inspector under paragraph (c) has the same force and effect as a warrant issued by the magistrate under subsections (4) and (5). 168—Announcement before entry on warrant (1) Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must— (a) announce that he or she is authorised by the warrant to enter the place; and (b) give any person at the place an opportunity to allow that entry. (2) However, the inspector or an assistant to the inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure— (a) the safety of any person; or (b) that the effective execution of the warrant is not frustrated. 169—Copy of warrant to be given to person with management or control of place If the person who has or appears to have management or control of a place is present at the place when a search warrant is being executed, the inspector must— (a) identify himself or herself to that person by producing his or her identity card for inspection; and (b) give that person a copy of the warrant. Subdivision 3—Limitation on entry powers 170—Places used for residential purposes Despite anything else in this Division, the powers of an inspector under this Division in relation to entering a place are not exercisable in relation to a part of a place that is used only for residential purposes except— (a) with the consent of the person with management or control of the place; or (b) under the authority conferred by a search warrant; or (c) for the purpose only of gaining access to a suspected workplace, but only— (i) if the inspector reasonably believes that no reasonable alternative access is available; and (ii) at a reasonable time having regard to the times at which the inspector believes work is being carried out at the place to which access is sought. Subdivision 4—Specific powers on entry 171—Power to require production of documents and answers to questions (1) An inspector who enters a workplace under this Division may— (a) require a person to tell the inspector who has custody of, or access to, a document; or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period; or (c) require a person at the workplace to answer any questions put by the inspector, subject to the operation of section 172. (2) A requirement under subsection (1)(b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. (3) An interview conducted by an inspector under subsection (1)(c) must be conducted in private if— (a) the inspector considers it appropriate; or (b) the person being interviewed so requests. (4) Subsection (3) does not limit the operation of section 166 or prevent a representative of the person being interviewed from being present at the interview. (5) Subsection (3) may be invoked during an interview by— (a) the inspector; or (b) the person being interviewed, in which case the subsection applies to the remainder of the interview. (6) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. See sections 172 and 173 in relation to self‑incrimination and section 269 in relation to legal professional privilege. (7) Subsection (6) places an evidential burden on the accused to show a reasonable excuse. 172—Protection against self‑incrimination An individual is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate that individual or expose that individual to a penalty. 173—Warning to be given (1) Before requiring a person to answer a question or provide information or a document under this Part, an inspector must— (a) identify himself or herself to the person as an inspector by producing the inspector's identity card or in some other way; and (b) warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and (c) advise the person about the effect of section 172; and (d) advise the person about the effect of section 269. (2) Nothing in this section prevents an inspector from obtaining and using evidence given to the inspector voluntarily by any person. 174—Powers to copy and retain documents (1) An inspector may— (a) make copies of, or take extracts from, a document given to the inspector in accordance with a requirement under this Act; and (b) keep that document for the period that the inspector considers necessary. (2) While an inspector retains custody of a document, the inspector must permit the following persons to inspect or make copies of the document at all reasonable times: (a) the person who produced the document; (b) the owner of the document; (c) a person authorised by a person referred to in paragraph (a) or (b). 175—Power to seize evidence etc (1) An inspector who enters a workplace under section 163 may seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act. (2) An inspector who enters a place with a search warrant may seize the evidence for which the warrant was issued. (3) An inspector may also seize anything else at the place if the inspector reasonably believes— (a) the thing is evidence of an offence against this Act; and (b) the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence. 176—Inspector's power to seize dangerous workplaces and things (1) This section applies if an inspector who enters a workplace under this Part reasonably believes that— (a) the workplace or part of the workplace; or (b) plant at the workplace; or (c) a substance at the workplace or part of the workplace; or (d) a structure at a workplace, is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur. (2) The inspector may seize the workplace or part, the plant, the substance or the structure. 177—Powers supporting seizure (1) Having seized a thing, an inspector may— (a) move the thing from the place where it was seized (the place of seizure); or (b) leave the thing at the place of seizure but take reasonable action to restrict access to it; or Examples—