Regulatory guide - Inspectors' powers relating to documents and interviews
We publish this regulatory guide to assist the organisations and entities we regulate.
An inspector who enters a workplace under s163 of the Work Health and Safety Act 2011 (WHS Act), has general and specific powers under the WHS Act.
These powers 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. Preconditions
An inspector may obtain and use evidence that is given to the inspector voluntarily by any person.[1] However, an inspector who enters a workplace in accordance with s163 and s164 of the WHS Act also has powers to require a person to produce documents or answer questions.[2] Before making such a requirement, the inspector must:
- identify themself to the person as an inspector by producing their inspector’s identity card or in some other appropriate 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 about the effect of section 172 of the WHS Act
- advise the person about the effect of section 269 of the WHS Act
- in the case of a notice issued in relation to entry to the workplace under s171(2A) of the WHS Act, the notice must state:[3]
- that the notice has been given under s171(2A)
- the purpose of the workplace entry to which the notice relates
- that it is an offence to fail to comply with the notice without reasonable excuse
- the effect of s172 and 269
- a person required to attend before an inspector can attend with a legal practitioner or representative.
2. Documents
Under section 171 of the WHS Act, an inspector who enters a workplace in accordance with s163 and s164 of the WHS Act may, while at the workplace:
- require a person to tell the inspector who has custody of, or access to, a document, and
- require a person who has custody of, or access to, that document to produce that document to the inspector.
If an inspector requires production of a document, this must be done by written notice unless the circumstances require the inspector to have immediate access to the document.[4]
Within 30 days of an inspector entering a workplace exercising their powers of entry under the WHS Act, the inspector, or another inspector, may give written notice to a person requiring them to:[5]
- produce specified documents which they have custody of, or access to, within a specified period
- give written answers to specified questions within a specified period.
The requirements to produce specified documents or give written answers to specified questions under s171(2A) of the WHS Act may only relate to a document or question relevant to the purpose for which the workplace was entered.[6] If a document is given to an inspector under section 171, the inspector may:[7]
- make copies of, or take extracts from, the document
- keep the document for the period that the inspector considers necessary.
If an inspector retains custody of a document, the inspector must give access to the document at all reasonable times to the person who produced the document or the document’s owner (or a person authorised by one of those persons). Having given access, the inspector must allow the person to inspect the document or make copies.[8]
An inspector might only retain custody of a hard copy of a document for a short period for the purposes of making a photocopy. A longer period of custody might apply if there is a feature of the original document that cannot easily be reproduced by photocopying, such as the manner in which a file is organised.
If an inspector considers that a document is evidence of an offence, it may be appropriate to seize the document under section 175 of the WHS Act.
3. Interviews
Under section 171 of the WHS Act, an inspector who enters a workplace in accordance with s163 and s164 of the WHS Act may require a person at the workplace to answer any questions put by the inspector.[9] An interview by the inspector, or the remainder of an interview that has commenced, must be conducted in private if:[10]
- the inspector considers it appropriate; or
- the person being interviewed so requests.
This does not prevent attendance by an assistant to the inspector or a representative of the person being interviewed.[11]
Within 30 days of an inspector exercising their powers of entry to a workplace under the WHS Act, the inspector or another inspector may give written notice to a person requiring them to attend before the inspector at a specified time to answer questions, including via audio or audiovisual link.[12] The requirement must relate to the purpose for the relevant entry to the workplace.
If the person asks to attend before the inspector by audio or audiovisual link, the inspector must agree to the request if it would be reasonable in the circumstances.[13] Additionally, if an inspector gives a written notice requiring a person to attend before the inspector by audio or audiovisual link and the person asks to attend before the inspector in person, the inspector must agree to the request if it would be reasonable in the circumstances.[14]
A person may attend the interview with a legal practitioner or other representative.
4. Issuing notices
The WHS Act provides that written notices may be issued or given to a person in any of the following ways:[15]
- by delivering it personally to the person or sending it by post or facsimile or electronic transmission to the person’s usual or last known place of residence or business.
- by leaving it for the person at the person’s usual or last known place or residence or business with a person who appears over 16 years and who appears to reside or work there.
- by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be the person with management or control of the workplace.
- in a prescribed manner.
5. Compliance
If an inspector makes a requirement to a person under section 171, the person must not, without reasonable excuse, refuse or fail to comply with the requirement. To do so is a criminal offence.[16]
However, the person is not required to produce a document or otherwise provide information that is the subject of legal professional privilege.[17]
A person is not excused from answering a question or providing information or a document in response to a section 171 notice on the grounds that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.[18] However, the answer to a question or production of information or a document by an individual is not admissible as evidence against that individual in civil or criminal proceedings, except in relation to proceedings arising out of the false or misleading nature of an answer, information or document.[19] There is no similar protection for a body corporate.
References
[1] Section 173(3) of the WHS Act.
[2] Section 171 of the WHS Act.
[3] Section 173(1A) of the WHS Act.
[4] Section 171(2) of the WHS Act.
[5] Section 171(2A) of the WHS Act.
[6] Section 171(2D) of the WHS Act.
[7] Section 174(1) of the WHS Act.
[8] Section 174(2) of the WHS Act.
[9] Section 171(1)(c) of the WHS Act.
[10] Section 171(3) and (5) of the WHS Act.
[11] Section 171(4) of the WHS Act.
[12] Section 171(2A)(c) of the WHS Act.
[13] Section 171(2B) of the WHS Act.
[14] Section 171(2C) of the WHS Act.
[15] Section 209 of the WHS Act.
[16] The evidential burden is on the accused to show a reasonable excuse. Under section 173(2) of the WHS Act there is an exception to the offence provision in the case of a person who was not warned about the effect of section 172 and who then refuses to answer a question on the ground of potential self-incrimination.
[17] Section 269 of the WHS Act.
[18] Section 172(1) of the WHS Act.
[19] Section 172(2) of the WHS Act.
