Regulatory guide - Inspectors' general powers on entry
We publish this regulatory guide to assist the organisations and entities we regulate.
An inspector who enters a workplace is given certain general powers by the Work Health and Safety Act 2011 (WHS Act), which can be exercised for the purposes of any of an inspector’s functions.
The inspector could be investigating a suspected contravention, but could equally be monitoring general compliance or attending the workplace to assist parties to resolve a dispute.
1. Powers to inspect
An inspector who enters a workplace under section 163 of the WHS Act is given general powers that can be exercised at the workplace. In particular, the inspector may do all or any of the following:
- inspect, examine and make inquiries at the workplace
- inspect and examine anything (including a document) at the workplace
- bring to the workplace and use any equipment or materials that may be required
- take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings)
- take and remove for analysis a sample of any substance or thing.[1]
In addition, an inspector may require a person at the workplace to give the inspector reasonable help to exercise those powers.[2] The person commits an offence if they refuse or fail, without reasonable excuse, to provide reasonable help as required by the inspector.[3]
Further, an inspector may exercise any other power that is given to an inspector by the WHS Act or the Work Health and Safety Regulations 2011 (WHS Regulations).[4] This may include, for example, the power to issue a non-disturbance notice to facilitate the inspector’s exercise of his or her powers.[5]
2. Electronic equipment
Special provisions apply to an inspector’s use of electronic equipment that is at a workplace.
An inspector who enters a workplace may operate electronic equipment at the workplace, the most obvious example of which is a computer, to see whether:
- the equipment
- a disk, tape or other storage device at the workplace that can be used with the equipment or is associated with it
contains information relevant to whether the WHS Act or WHS Regulations have been complied with.[6]
If the inspector finds relevant information while exercising the power to operate electronic equipment upon entering workplace, the inspector may:
- operate electronic equipment at the workplace to put the information in documentary form and then remove the documents so produced from workplace
- operate electronic equipment at the workplace to transfer the information to a disk, tape or other storage device and then remove the storage device from the workplace.[7]
In the latter case, the inspector may only use a storage device that the inspector has brought to the workplace or, if the occupier of the premises has agreed in writing, a storage device that is otherwise at the workplace.[8]
The inspector may exercise these powers relating to electronic equipment only if he or she believes on reasonable grounds that the operation of the equipment will not damage the equipment.[9]
References
[1] WHS Act, section 165(1)(a)-(e).
[2] WHS Act, section 165(1)(f).
[3] WHS Act, section 165(2). The penalty is $10,000 in the case of an individual and $50,000 in the case of a body corporate or the Commonwealth.
[4] WHS Act, section 165(1)(g).
[5] WHS Act, section 198.
[6] WHS Act, section 165A(1).
[7] WHS Act, section 165A(2)(b) and (c).
[8] WHS Act, section 165A(2)(c)(i) and (ii).
[9] WHS Act, section 165A(3).
