Division 4Division 4 Appointment and powers of inspectors
In this Division:occupier includes a person for the time being having (or appearing to have) the charge, management or control of premises or a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises.
relevant legislation means the provisions of this Act, the Construction Safety Act 1912 and the Factories, Shops and Industries Act 1962 (other than Parts 4 and 6) and regulations made under those provisions.
This Division does not apply to a mine within the meaning of the Mines Inspection Act 1901 or the Coal Mines Regulation Act 1982.
The WorkCover Authority may appoint as inspectors for the purposes of the relevant legislation any of the following persons:(a) a statutory officer,(b) a public servant,(c) a person employed by a public or local authority,(d) a person belonging to a class of persons prescribed by the regulations.
31A Powers of entry for places of work
For the purposes of the relevant legislation, an inspector may enter any premises the inspector has reason to believe is a place of work.
(1) An inspector authorised to enter premises under this Division may enter the premises without notice.(2) The inspector must notify the occupier of the premises of the inspector’s presence on the premises as soon as reasonably practicable after entering the premises, unless:(a) to do so would defeat the purpose for which the premises were entered or would unreasonably delay the inspector in a case of urgency, or(b) the occupier is already aware that the inspector has entered the premises or was notified in advance of when the inspector would enter the premises.
31C Authority to enter premises
(1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the occupier of the premises.(2) The authority must be a written authority that is issued by the WorkCover Authority and that:(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the powers conferred and the source of the powers, and(d) states the date (if any) on which it expires, and(e) describes the kind of premises to which the power extends, and(f) bears the signature of the General Manager of the WorkCover Authority or an officer approved by the General Manager for the purposes of this paragraph.(3) Entry may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on.(4) This section does not apply to a power conferred by a search warrant.
(1) Reasonable force may be used for the purpose of gaining entry to premises (other than domestic premises) under a power conferred by this Division, but only if authorised by the WorkCover Authority in accordance with this section or in cases of emergency.(2) The authority of the WorkCover Authority:(a) must be in writing, and(b) must be given in respect of the particular entry concerned, and(c) must specify the circumstances that are required to exist before force may be used.(3) This section does not apply to a power conferred by a search warrant and does not affect section 17 of the Search Warrants Act 1985 (Use of force to enter premises etc).
31E Notification of use of force on entry
(1) An inspector authorised to enter premises under this Division who uses force for the purpose of gaining entry to the premises must promptly advise the WorkCover Authority of the use of force.(2) The WorkCover Authority must give written notice of the entry to such persons or authorities as appear to the Authority to be appropriate in the circumstances.
The WorkCover Authority must pay compensation for any loss or damage caused by any inspector in the exercise of any power to enter premises under this Division, but not if that loss or damage is caused because the occupier obstructed, hindered or restricted the inspector in the exercise of the power of entry.
31G Entry to domestic premises
The powers of entry conferred by this Division are not exercisable in relation to domestic premises except:(a) with the permission of the occupier of the premises, or(b) under the authority conferred by a search warrant.
(1) An inspector may apply to an authorised justice for a search warrant if the inspector has reasonable grounds for believing that a provision of the relevant legislation has been or is being or is about to be contravened in or about any premises.(2) An authorised justice to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of the relevant legislation.(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.(4) In this section, authorised justice has the same meaning as it has in the Search Warrants Act 1985.
For the purposes of the relevant legislation, an inspector who enters premises under this Division may do any of the following:(a) make searches, inspections, examinations and tests (and take photographs and make video and audio records),(b) take for analysis a sample of any substance or thing which in the inspector’s opinion may be, contain or be contaminated by, a substance (or a degradation product of a substance) prescribed by the regulations,(b1) dismantle any plant or thing on the premises for the purpose of examination, if the inspector believes on reasonable grounds that the plant or thing has been used in the commission of an offence against the relevant legislation,(b2) take any plant, substance or thing (or any sample of a substance) from the premises, if the inspector believes on reasonable grounds that the plant, substance or thing has been used in the commission of an offence against the relevant legislation,(b3) keep any plant, substance, sample or thing taken under paragraph (b2) that:(i) may reasonably be required as evidence in proceedings for an offence against the relevant legislation, or(ii) might, if not so kept, be used to continue or repeat the offence,(c) in the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined,(d) carry out biological tests in such manner and in such circumstances as may be prescribed by the regulations,(e) require any person in or about those premises to answer questions or otherwise furnish information,(f) require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector’s functions,(g) require the production of and inspect any records in or about those premises,(h) take copies of or extracts from any such records,(i) exercise all other functions that are conferred by or are reasonably necessary for the purposes of the relevant legislation.
In the exercise of a function under this Division, an inspector must do as little damage as possible.
31K Inspector may request assistance
(1) A police officer may accompany and take all reasonable steps to assist an inspector in the exercise of the inspector’s functions under this Division:(a) in executing a search warrant issued under section 31H, or(b) if the inspector reasonably believes that he or she may be obstructed in the exercise of those functions.(2) Any person whom an inspector believes to be capable of providing assistance in the exercise of the inspector’s functions under this Division may accompany the inspector and take all reasonable steps to assist the inspector in the exercise of the inspector’s functions.(3) Nothing in subsection (1) is to be taken to limit the generality of section 18 of the Search Warrants Act 1985.
31KA Power of inspectors to obtain information, documents and evidence
(1) An inspector may, by notice in writing served on a person who is, on reasonable grounds, believed by the inspector to be capable of giving information, producing documents or giving evidence in relation to a possible contravention of the relevant legislation require the person to do any one or more of the following things:(a) to give an inspector, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,(b) to produce to an inspector, in accordance with the notice, any such documents,(c) to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.(2) A notice under this section must contain a warning that a failure to comply with the notice is an offence.(3) An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.(4) An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.(5) A certified copy provided under subsection (4) is receivable in all courts as if it were the original.(6) Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.
31L Attendance of inspector at coronial inquest
An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of any employee while employed at a place of work.
31M Protection from incrimination
(1) A person is not excused from making a statement, giving or furnishing information or evidence or producing a document in accordance with a requirement under this Division on the ground that the statement, information, document or evidence may tend to incriminate the person.(2) However, any statement, information, document or evidence obtained from a person pursuant to a requirement under this Division is not admissible in evidence against the person in criminal proceedings (other than proceedings for an offence under section 31N) if:(a) the person claims before making the statement or giving, furnishing or producing the information, document or evidence that it might tend to incriminate the person, or(b) the person’s entitlement to make a claim of the kind referred to in paragraph (a) was not drawn to the person’s attention before the statement was made or the information, document or evidence was given, furnished or produced.(3) Subsection (2) does not prevent the admission in evidence in proceedings against a body corporate of any statement, information, document or evidence obtained pursuant to a requirement under this Division from a person as a competent officer of the body corporate.
31N Offence: obstruction and compliance
A person must not:(a) obstruct, hinder or impede an inspector in the exercise of the inspector’s functions under this Division, or(b) prevent or attempt to prevent any other person from assisting an inspector in the exercise of the inspector’s functions under this Division, or(c) directly or indirectly intimidate or threaten or attempt to intimidate an inspector or a person assisting an inspector in the exercise of the inspector’s functions under this Division, or(d) without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division, or(e) in purported compliance with a requirement under this Division, or in answer to a question of an inspector asked in accordance with this Division, give or furnish information or evidence or produce a document knowing it to be false or misleading in a material particular.Maximum penalty: 100 penalty units.
31O Offence: impersonating an inspector
A person must not impersonate, or falsely represent that the person is, an inspector.Maximum penalty: 100 penalty units.
(1) A person who is, or was at any time, an inspector must not disclose any information relating to any manufacturing or commercial secrets or working processes that was obtained by the inspector in connection with the administration or execution of the relevant legislation.Maximum penalty: 20 penalty units.
(2) Subsection (1) does not operate to prevent the disclosure of information where that disclosure is:(a) made in connection with the administration or execution of the relevant legislation, or(b) made with the prior permission of the Minister, or(c) ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing and determination by that court, body or person of any matter or thing.(3) The Minister may grant the permission referred to in subsection (2) (b) only if the Minister is satisfied that to do so would be in the public interest.
31Q Power of employees’ representative to accompany inspector
(1) An inspector who is proposing to undertake an inspection of a place of work with respect to a matter that may affect the health, safety or welfare of employees at the place of work:(a) must, to the extent that it is practicable, consult a representative of the employees or an industrial organisation of employees whose members are employed at the place of work, and(b) must, if requested to do so by the representative, take the representative on any such inspection.(2) In this section, inspector means an inspector appointed under this Division or under any associated occupational health and safety legislation.
31R Inspector may issue improvement notices
(1) If an inspector is of the opinion that any person:(a) is contravening any provision of this Act or the regulations, or(b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated,the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice.(2) The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention must be at least 7 days after the issue of the notice.(3) However, an inspector may specify a period that is less than 7 days after the issue of the improvement notice if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of that period.(4) An improvement notice must:(a) state that the inspector is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) specify the provision of the Act or the regulations in respect of which that opinion is held, and(d) include information about obtaining a review of the notice under section 31U.(5) A person who, without reasonable excuse, fails to comply with a requirement imposed by an improvement notice is guilty of an offence.Maximum penalty:
(a) 500 penalty units in the case of a corporation, or(b) 250 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or(c) 15 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee.
31S Inspector may issue prohibition notices
(1) If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk to the health or safety of any person, the inspector may issue to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters which give or will give rise to the risk are remedied.(2) A prohibition notice must:(a) state that the inspector is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) specify the activity in respect of which that opinion is held, and(d) if in the inspector’s opinion the activity involves a contravention or likely contravention of any provision of the Act or the regulations—specify that provision and state the reasons for that opinion, and(e) include information about obtaining a review of the notice under section 31U.(3) A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence.Maximum penalty:
(a) 1,000 penalty units in the case of a corporation, or(b) 500 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or(c) 30 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee.
31T Notices may include directions
(1) An inspector may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remedy any contravention or matter to which the notice relates.(2) Any such direction may:(a) adopt, by reference, the requirements of any industrial or other code of practice, and(b) offer the person to whom it is issued a choice of ways in which to remedy the contravention or matter.
(1) A person who is issued with a notice under section 21B, 21C or 31Z, an improvement notice or a prohibition notice may apply in writing to the WorkCover Authority for a review of the notice.(2) The application for review must be made within 7 days after the notice is issued or, if the regulations prescribe a different period, within the period so prescribed.(3) An application for review may be made only once in respect of any particular notice.(4) The WorkCover Authority is to review a notice that is the subject of a duly made application for review. The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the WorkCover Authority until the WorkCover Authority gives notice to the applicant of the result of the review. If the notice is a prohibition notice it can be stayed as provided by section 31UA.(5) The WorkCover Authority may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant.(6) An applicant who is not satisfied with the result of a review may appeal against the notice concerned to a Local Court constituted by an Industrial Magistrate sitting alone.(7) An appeal to a Local Court under this section does not operate to stay the notice the subject of the appeal except as otherwise ordered by the Court.(8) Regulations may be made with respect to reviews and appeals under this section, including as to the time and manner in which an application for such a review or appeal is to be made.
31UA Application to Industrial Magistrate for stay of prohibition notice
(1) If a person duly applies under section 31U for review of a prohibition notice, the person may apply to a Local Court constituted by an Industrial Magistrate for a stay of the notice.(2) A stay may be granted for such period as the court considers appropriate but not so as to extend past the time when notice of the result of the review is given to the applicant by the WorkCover Authority.(3) A stay may be granted on such conditions as the court considers appropriate and may be revoked or amended by the court.
(1) A notice under section 21C or 31Z or an improvement notice or a prohibition notice may be withdrawn at any time by the inspector who issued the notice or by the WorkCover Authority if the inspector or the WorkCover Authority is satisfied that the notice was issued in error or is incorrect in some respect.(2) The withdrawal has effect when notice of the withdrawal is given to the person to whom the notice was issued.
31W Revocation or withdrawal of notice does not prevent issue of another notice
The revocation or withdrawal of a notice under section 21C or 31Z or an improvement notice or a prohibition notice does not prevent the issue of any other notice.
31X Service and exhibition of notices
(1) A notice under section 21B, 21C or 31Z or an improvement notice or prohibition notice, or a notice confirming, revoking or withdrawing such a notice may be issued or given to a person:(a) by delivering it personally to the person, or(b) by leaving it with some other person at, or sending it by post to, the person’s place of residence or business or the place of work to which the notice relates.(2) This section does not affect the operation of any provision of a law or the rules of a court authorising a notice or other document to be served in a manner not authorised by this section.(3) An inspector may cause a notice containing a copy of or extract from a notice referred to in subsection (1), or of the matter contained in the notice, to be exhibited at the place of work concerned in a manner approved by the WorkCover Authority.(4) A person must not destroy, damage or remove a notice exhibited under subsection (3) except with the approval of the WorkCover Authority or an inspector.Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case.
31Y Proceedings for offences not affected by notices
The issue, variation, revocation or withdrawal of a notice under section 21C or 31Z or a prohibition notice or improvement notice does not affect any proceedings for an offence against this Act, the regulations or the associated occupational health and safety legislation in connection with any matter in respect of which the notice was issued.
31Z Notice of taking or dismantling
(1) Before exercising any of the powers under section 31I (b1)–(b3), an inspector must give notice to the occupier of a place of work where the relevant plant, substance or thing is situated of the inspector’s intention to exercise that power.(2) The notice must specify the date and time when the inspector proposes to exercise the powers as well as the plant, substance or thing in relation to which the powers are to be exercised.
(1) Having taken a thing under section 31I (b2), an inspector may:(a) move the thing from the place where it was taken, or(b) leave the thing at the place but take reasonable action to restrict access to it, or(c) if the thing is plant—dismantle it.(2) The following are examples of restricting access to a thing:(a) sealing a thing and marking it to show access to it is restricted,(b) sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted.(3) If an inspector restricts access to a thing taken, 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: 40 penalty units.
(4) To enable a thing to be taken under section 31I (b2), 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.(5) The requirement:(a) must be made by notice in the approved form, or(b) if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice in the approved form as soon as practicable.(6) The person must comply with the requirement unless the person has a reasonable excuse for not complying.Maximum penalty: 40 penalty units.
(7) 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.
(1) As soon as reasonably practicable after an inspector takes a thing under section 31I (b2), the inspector must give a receipt for it to the person from whom it was taken.(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 where the thing was taken.(3) The receipt must describe generally each thing taken and its condition.(4) This section does not apply to a thing if it is impracticable or would be unreasonable to give the notice required by the section (given the thing’s nature, condition and value).
31AC Forfeiture of things taken
(1) A thing taken under section 31I (b2) is forfeited to the State if the inspector who took the thing:(a) cannot find its owner after making reasonable inquiries, or(b) cannot return it to its owner, after making reasonable efforts, or(c) reasonably believes it is necessary to retain the thing to prevent it being used to commit an offence against this Act.(2) Subsection (1) (a) does not require the inspector to make inquiries if it would be unreasonable to make inquiries to find the owner, and subsection (1) (b) does not require the inspector to make efforts if it would be unreasonable to make efforts to return the thing to its owner.(3) If the inspector decides to forfeit a thing under subsection (1) (c), the inspector must tell the owner of the decision by written notice.(4) Subsection (3) does not apply if:(a) the inspector cannot find its owner, after making reasonable inquiries, or(b) it is impracticable or would be unreasonable to give the notice.(5) The notice must state:(a) the reasons for the decision, and(b) that the owner may apply within 28 days for the decision to be reviewed, and(c) how the owner may apply for the review, and(d) that the owner may apply for a stay of the decision if the owner applies for a review.(6) 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.
(1) If a thing taken under section 31I (b2) has not been forfeited, the inspector must return it to its owner at the end of:(a) 6 months, or(b) if a proceeding for an offence involving it is started within 6 months—the proceeding and any appeal from the proceeding.(2) Despite subsection (1), unless the thing has been forfeited, the inspector must immediately return a thing taken as evidence to its owner if the inspector stops being satisfied its continued retention as evidence is necessary.
(1) Until a thing taken under section 31I (b2) is forfeited or returned, an inspector must allow its owner to inspect it and, if it is a document, to copy it.(2) Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.