Last week we had a look at the roles and powers of the regulator under the new Work Health and Safety Act 2020 (WHS Act) due to be implemented this year. The regulator is assisted by The Department of Mines, Industry Regulation and Safety in the administration of the WHS Act. This includes the provision of inspectors and other staff to secure compliance with the legislation. This week our focus is on securing compliance.
FUNCTIONS AND POWERS OF INSPECTORS (SECTIONS 160-162, 171, 172)
Inspectors have general functions and powers to:
- provide information and advice about how to comply with the WHS Act and regulations
- help resolve work health and safety issues at workplaces
- review disputed PINs (provisional improvement notice)
- require compliance with the WHS Act by issuing notices
- investigate contraventions and assist to prosecute offences
- investigate and report on matters relating to WHS, including particular types of hazards and matters relating to particular industries or particular businesses or undertakings.
Inspectors are subject to the regulator’s directions in the exercise of their compliance powers.
In performing their functions and exercising powers, an inspector at a workplace may require a person to answer their questions, submit to an interview or produce documents or information. The information must be provided in a form that is capable of being understood by the inspector, particularly in relation to electronically stored documents.
It is an offence for a person to refuse or fail to comply with the inspector’s request without reasonable excuse. However, the person may refuse to produce a document or information that is subject to legal professional privilege.
WARNING TO BE GIVEN (SECTION 173)
An inspector may obtain and use information voluntarily given to them in their official capacity by any person.
If a person is however required to answer a question or provide information or a document as explained above, the inspector must first:
- identify themselves to the person as an inspector by producing their inspector’s identity card or in some other way
- warn the person that failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence
- warn the person that they are not excused from answering a question or providing information or a document on the ground that they may incriminate themselves
- advise the person that legal professional privilege may be claimed.
It is not an offence for a person to refuse to cooperate on grounds that they may incriminate themselves if the inspector has not first given them the required warning.
POWER TO REQUIRE NAME AND ADDRESS (SECTION 185)
An inspector may require a person to provide their name and residential address if:
- the inspector finds them committing an offence against the WHS Act
- the inspector finds them in circumstances that leads the inspector to reasonably believe they have committed an offence against the WHS Act, or
- the inspector reasonably believes that the person may be able to assist in the investigation of an offence against the WHS Act.
In making the request the inspector must explain the reasons for the requirement and warn the person that it is an offence to refuse or fail to comply without reasonable excuse.
POWER OF ENTRY FOR INSPECTORS (SECTIONS 163-166)
In performing their functions and exercising powers, an inspector may enter a workplace or a suspected workplace at any time without prior notice, with or without the consent of the person with management or control.
An inspector must identify themselves on request, by showing their identity card or by another way, prescribed in the WHS regulations, such as a departmental letter or email, or confirmation with the department by telephone.
An inspector must take all reasonable steps to advise the relevant PCBU, person with management or control of the workplace and any relevant HSRs they have entered the workplace as soon as practicable. This is not needed if it would defeat the purpose of entry or cause unreasonable delay.
An inspector entering a workplace can:
- inspect, examine, and make inquiries
- inspect, examine, and seize anything, including documents, and may analyse or test a seized thing or arrange for another person to do so
- bring and use any equipment or materials they may need
- take measurements, conduct tests, and make sketches or recordings (for example, photographs, films, audio, and video)
- take and remove samples for analysis.
*Disclaimer: Please note this communication is provided for general information purposes only. It is not intended as legal advice, only a Legal Practicing Professional can provide legal advice.
