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Inspectors' powers relating to documents and interviews

An inspector who enters a workplace is given certain general powers by the Commonwealth Work Health and Safety Act 2011 (WHS Act). An inspector is also given more specific powers that can be exercised on entry to a workplace. The specific 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 does have powers to require a person to produce documents or answer questions.

Before making such a requirement, the inspector must:

  • identify himself or herself to the person as an inspector by producing the inspector’s identity card or in some other 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
  • advise the person about the effect of section 269.

Under section 172, a person cannot rely on the privilege against self-incrimination. Section 269 confirms that it is possible to rely on legal professional privilege.

2. Documents

Under section 171 of the WHS Act, an inspector who enters a workplace may:

  • require a person to tell the inspector who has custody of, or access to, a document
  • require a person who has custody of, or access to, a document to produce that document to the inspector.[2]

If an inspector requires production of a document, this should be done by written notice unless the circumstances require the inspector to have immediate access to the document.[3]

Whether or not the requirement is made by written notice, the inspector should specify when the document should be produced. This might be while the inspector is at the workplace, or within a specified period.[4]

If a document is given to an inspector under section 171, the inspector may:

  • make copies of, or take extracts from, the document
  • keep the document for the period that the inspector considers necessary.[5]

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.[6]

An inspector might only retain custody 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.

3. Interviews

Under section 171, an inspector who enters a workplace may also require a person at the workplace to answer any questions put by the inspector.[7]

An interview by the inspector, or the remainder of an interview that has commenced, must be conducted in private if:

  • the inspector considers it appropriate
  • the person being interviewed so requests.[8]

This does not prevent attendance by an assistant to the inspector or a representative of the person being interviewed.[9]

4. 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 an offence.[10]

However, the person is not required to produce a document or otherwise provide information that is the subject of legal professional privilege.[11]

A person is not excused from answering a question or providing information or a document in response to a section 171 notice 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.[12]

5. References

[1] WHS Act, section 173(3).

[2] WHS Act, section 171(1)(a) & (b).

[3] WHS Act, section 171(2).

[4] WHS Act, section 171(1)(b).

[5] WHS Act, section 174(1).

[6] WHS Act, section 174(2).

[7] WHS Act, section 171(1)(c).

[8] WHS Act, section 171(3) & (5).

[9] WHS Act, section 171(4).

[10] WHS Act, section 171(6). The penalty is $10,000 in the case of an individual and $50,000 in the case of a body corporate or the Commonwealth. The evidential burden is on the accused to show a reasonable excuse. Under section 173(2), 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.

[11] WHS Act, section 269.

[12] WHS Act, section 172(1). If the person is an individual, there are restrictions on how the answer, information or document may be used in civil or criminal proceedings against the person: section 172(2).

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Page last updated: 01 Jul 2016