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Contents (2011 - 10)
Work Health and Safety Act 2011 No 10
Current version for 7 July 2017 to date (accessed 18 November 2017 at 04:26)
Part 9
Part 9 Securing compliance
Division 1 Appointment of inspectors
156   Appointment of inspectors
The regulator may, by instrument, appoint any of the following as an inspector:
(a)  an officer or employee of a public authority,
(b)  the holder of a statutory office,
(c)  a person who is appointed as an inspector under a corresponding WHS law,
(d)  a person in a prescribed class of persons.
156A   (Repealed)
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)  to attend coronial inquests in relation to work-related deaths and examine witnesses.
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.
162A   (Repealed)
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.
Note.
 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.
(4)  In this section, 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 this Division 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.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
(3)  Subsection (2) places an evidential burden on the accused to show a reasonable excuse.
165A   (Repealed)
166   Persons assisting inspectors
(1)  A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 165 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.
166A   (Repealed)
Subdivision 2 Search warrants
167   Search warrant
(1)  An inspector may apply to an authorised officer for a search warrant if the inspector believes on reasonable grounds that a provision of this Act has been or is being or is about to be contravened in or about any premises.
(2)  An authorised officer 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 this Act.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  In this section:
authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
168   Announcement before entry on warrant
* * * * *
Note.
 Not required in NSW.
169   Copy of warrant to be given to person with management or control of place
* * * * *
Note.
 Not required in NSW.
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 any 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.
(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.
Division 4 Damage and compensation
182   Damage etc to be minimised
In the exercise, or purported exercise, of a compliance power, an inspector must take all reasonable steps to ensure that the inspector, and any assistant to the inspector, cause as little inconvenience, detriment and damage as is practicable.
183   Inspector to give notice of damage
(1)  This section applies if an inspector or an assistant to an inspector damages a thing when exercising or purporting to exercise a compliance power.
(2)  The inspector must, as soon as practicable, give written notice of the damage to the person who the inspector believes on reasonable grounds, is the person in control of the thing.
(3)  If the inspector believes the damage was caused by a latent defect in the thing or circumstances beyond the inspector’s or assistant’s control, the inspector may state it in the notice.
(4)  If, for any reason, it is impracticable to comply with subsection (2), the inspector must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.
(5)  This section does not apply to damage the inspector reasonably believes is trivial.
184   Compensation
(1)  A person may claim compensation from the State if the person incurs loss or expense because of the exercise or purported exercise of a power under Division 3 of this Part.
(2)  Compensation may be claimed and ordered in a proceeding:
(a)  brought in a court of competent jurisdiction, or
(b)  for an offence against this Act brought against the person claiming compensation.
(3)  The court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4)  The regulations may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.
Division 5 Other matters
185   Power to require name and address
(1)  An inspector may require a person to provide the person’s name and residential address if:
(a)  the inspector finds the person committing an offence against this Act, or
(b)  the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has committed an offence against this Act.
(2)  When asking a person to provide his or her name and residential address, the inspector must:
(a)  tell the person the reason for the requirement to provide their name and residential address, and
(b)  warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse.
(3)  If the inspector reasonably believes that the name or residential address is false, the inspector may ask the person to give evidence of its correctness. It is not an offence for a person to fail to give that evidence.
(4)  A person must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1).
Maximum penalty: $10,000.
(5)  Subsection (4) places an evidential burden on the accused to show a reasonable excuse.
186   Inspector may take affidavits
An inspector is authorised to take affidavits for any purpose relating or incidental to the exercise of his or her compliance powers.
187   Attendance of inspector at coronial inquests
An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of a worker while carrying out work.
Division 6 Offences in relation to inspectors
188   Offence to hinder or obstruct inspector
A person must not intentionally hinder or obstruct an inspector in exercising his or her compliance powers, or induce or attempt to induce any other person to do so.
Maximum penalty:
(a)  in the case of an individual—$10,000, or
(b)  in the case of a body corporate—$50,000.
189   Offence to impersonate inspector
A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.
Maximum penalty: $10,000.
190   Offence to assault, threaten or intimidate inspector
A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an inspector or a person assisting an inspector.
Maximum penalty:
(a)  in the case of an individual—$50,000 or imprisonment for 2 years or both, or
(b)  in the case of a body corporate—$250,000.