Work Health and Safety Act 2011 No 10
Current version for 1 January 2014 to date (accessed 21 December 2014 at 13:41)
Part 9Division 3Subdivision 4

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.
(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.

Maximum penalty:

(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.

Note. 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   Abrogation of privilege against self-incrimination

(1)  A person is not 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 the person or expose the person to a penalty.
(2)  However, the answer to a question or information or a document provided by an individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document.

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)  warn the person about the effect of section 172, and
(d)  advise the person about the effect of section 269.
(2)  It is not an offence for an individual to refuse to answer a question put by an inspector or provide information or a document to an inspector under this Part on the ground that the question, information or document might tend to incriminate him or her, unless he or she was first given the warning in subsection (1) (c).
(3)  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 this Part may:
(a)  seize anything (including a document) at the place if the inspector reasonably believes the thing is evidence of an offence against this Act, or
(b)  take and remove for analysis, testing or examination a sample of any substance or thing without paying for it.
(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 Sealing a thing and marking it to show access to it is restricted.

Sealing the entrance to a room where the seized thing is situated and marking it to show access to it is restricted.

(c)  if the thing is plant or a structure—dismantle or cause to be dismantled the plant or structure.
(2)  If an inspector restricts access to a seized thing, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector’s approval.

Maximum penalty:

(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.

(3)  To enable a thing to be seized, an inspector may require the person in control of it:
(a)  to take it to a stated reasonable place by a stated reasonable time, and
(b)  if necessary, to remain in control of it at the stated place for a reasonable time.
(4)  The requirement:
(a)  must be made by written notice, or
(b)  if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable.
(5)  A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement.
(6)  The person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (3) or (5).

Maximum penalty:

(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.

(7)  Subsection (6) places an evidential burden on the accused to show a reasonable excuse.

178   Receipt for seized things

(1)  As soon as practicable after an inspector seizes a thing, the inspector must give a receipt for it to the person from whom it was seized.
(2)  However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place of seizure.
(3)  The receipt must describe generally each thing seized and its condition.
(4)  This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing’s nature, condition and value).

179   Forfeiture of seized things

(1)  A seized thing is forfeited to the State if the regulator:
(a)  cannot find the person entitled to the thing after making reasonable inquiries, or
(b)  cannot return it to the person entitled to it, after making reasonable efforts, or
(c)  reasonably believes it is necessary to forfeit the thing to prevent it being used to commit an offence against this Act.
(2)  Subsection (1) (a) does not require the regulator to make inquiries if it would be unreasonable to make inquiries to find the person entitled to the thing.
(3)  Subsection (1) (b) does not require the regulator to make efforts if it would be unreasonable to make efforts to return the thing to the person entitled to it.
(4)  If the regulator decides to forfeit the thing under subsection (1) (c), the regulator must tell the person entitled to the thing of the decision by written notice.
(5)  Subsection (4) does not apply if:
(a)  the regulator cannot find the person entitled to the thing, after making reasonable inquiries, or
(b)  it is impracticable or would be unreasonable to give the notice.
(6)  The notice must state:
(a)  the reasons for the decision, and
(b)  that the person entitled to the thing may apply within 28 days after the date of the notice for the decision to be reviewed, and
(c)  how the person may apply for the review, and
(d)  that the person may apply for a stay of the decision if the person applies for a review.
(7)  In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing’s nature, condition and value.
(8)  Any costs reasonably incurred by the State in storing or disposing of a thing forfeited under subsection (1) (c) may be recovered in a court of competent jurisdiction as a debt due to the State from that person.
(9)  In this section, person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it in which case it means the owner of the thing.

180   Return of seized things

(1)  If a seized thing has not been forfeited, the person entitled to the thing may apply to the regulator for the return of the thing after the end of 6 months after it was seized.
(2)  The regulator must return the thing to the applicant under subsection (1) unless the regulator has reasonable grounds to retain the thing.
(3)  The regulator may impose any conditions on the return of the thing under this section that the regulator considers appropriate to eliminate or minimise any risk to work health or safety related to the thing.
(4)  In this section, person entitled to a thing means the person entitled to possess the thing or the owner of the thing.

181   Access to seized things

(1)  Until a seized thing is forfeited or returned, the regulator must permit the following persons to inspect it and, if it is a document, to make copies of it at all reasonable times:
(a)  the person from whom the thing was seized,
(b)  the owner of the thing,
(c)  a person authorised by a person referred to in paragraph (a) or (b).
(2)  Subsection (1) does not apply if it is impracticable or would be unreasonable to allow inspection or copying.
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