Regulatory guide - Inspectors' powers to seize dangerous workplaces and things

An inspector who enters a workplace in accordance with s163 and s164 is given general powers by the Work Health and Safety Act 2011 (WHS Act).

An inspector is also given specific powers that can only be exercised after entry to a workplace under s163 of the WHS Act. The specific powers include powers to seize workplaces and things that an inspector reasonably believes are defective or hazardous and likely to be dangerous. These seizure powers serve a protective purpose beyond gathering of evidence.

1. Power of seizure

An inspector who enters a workplace under section 163 of the WHS Act may form a view that the workplace (or part of the workplace) or plant, a substance or a structure located there is defective or hazardous.

Under section 176 of the WHS Act, if the inspector reasonably believes that the workplace (or a part of it), or a substance, structure or plant at the workplace is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur, the inspector may seize that thing.

The ‘reasonably believes’ threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person.^[1]

The definitions of ‘serious injury or illness’ and ‘dangerous incident’ that apply for the purposes of incident notification do not apply here.^[2] The inspector will have consideration of those definitions, but they do not determine whether a seizure can be made.

Inspectors have other powers to prevent dangerous circumstances such as by issuing a prohibition notice.^[3] Inspectors also have power to seize things that the inspector reasonably believes is evidence of an offence against the WHS Act.^[4]

2. Location of seized things

If an inspector has seized a thing under the WHS Act, the inspector may move the thing from the place where it was seized. If the thing is plant or a structure, the inspector may dismantle it or cause it to be dismantled.^[5]

The inspector may also leave the thing at the place where it was seized, but take reasonable action to restrict access to it.^[6]This could involve sealing the thing, or the entrance to a room where the thing is situated, and marking it to show that access is restricted. If an inspector restricts access to a seized thing, unless an inspector gives approval, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing. A person who does so commits a criminal offence.^[7]

An inspector may consider that a thing that he or she intends to seize under the WHS Act should be relocated to enable the seizure. In this case, the inspector may require the person in control of the thing:

• to take it to a stated place (which must be reasonable) by a stated time (which must be reasonable)
• if necessary, to remain in control of it at the stated place for a time (which must be reasonable).^[8]

The requirement must be made by written notice. If it is not practicable to give written notice at the necessary time, the inspector may make the requirement orally and confirm it by written notice as soon as practicable.^[9]

The person must not refuse or fail to comply with the requirement, unless the person has a reasonable excuse. To do so is a criminal offence.^[10]

3. After seizure

If an inspector seizes a thing under the WHS Act, as soon as practicable after doing so the inspector must give a receipt for the thing to the person from whom it was seized. This includes things seized under a search warrant. The receipt must describe each thing that has been seized and its condition.^[11]

If it is not practicable to give a receipt in this way—for instance, because there is no person who appears to own or be in control of the thing—the inspector must leave a receipt in a conspicuous position and in a reasonably secure way in the place where the thing was seized.^[12]

However, no receipt is required if the nature, condition and value of the thing makes it impracticable or unreasonable to give the receipt.^[13]

A seized thing may be forfeited to the Commonwealth in certain circumstances.^[14]If a seized thing has not been forfeited and six months have elapsed from the seizure, the person from whom the thing was seized or the owner may apply to Comcare to have the thing returned.^[15]Comcare must return the thing unless it has reasonable grounds to retain it.^[16]Comcare may return the thing subject to conditions that Comcare considers appropriate to eliminate or minimise any risk to work health and safety related to the thing.^[17]

Until a seized thing is forfeited or returned, Comcare must permit the following persons to inspect it at all reasonable times, unless it is impracticable or unreasonable to allow inspection:^[18]

• the person from whom the thing was seized, or another person authorised by the first person
• the owner of the thing, or a person authorised by the owner.

If the thing is a document, Comcare must also allow those persons to inspect and make copies of it at all reasonable times, unless it is impracticable or unreasonable to do so.^[19]