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Regulatory guide - Inspectors' powers relating to evidence of offences

For: Employers and managers Information seekers

We publish this regulatory guide to assist the organisations and entities we regulate.


The WHS Act gives specific powers to an inspector where the inspector has a certain state of belief that an offence against the Work Health and Safety Act 2011 (WHS Act) or the Work Health and Safety Regulations 2011 (WHS Regulations) has been committed or that something constitutes evidence of an offence.

An inspector can exercise any other applicable powers when exercising powers related to evidence of offences. There is nothing to prevent information obtained under other powers being used as evidence in a prosecution for an offence.

1. Power to seize evidence

An inspector who enters a workplace may form the view that a thing (including a document) at the workplace is evidence of an offence against the WHS Act or WHS Regulations.

Under section 175 of the WHS Act, if the inspector reasonably believes that the thing is evidence of an offence, the inspector may seize the thing.[1]

The ‘reasonably believes’ threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person.[2]

The provisions described in ‘Inspectors’ power to seize dangerous workplaces and things’ under the headings ‘Location of seized things’ and ‘After seizure’ also apply to things that are seized under section 175.

2. Power to require name and address

Under section 185 of the WHS Act, an inspector may require a person to provide the person’s name and residential address if:

  • the inspector finds the person committing an offence against the WHS Act or WHS Regulations
  • 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 the WHS Act or WHS Regulations.[3]

This power is not dependant on the inspector having entered a workplace.

In making this requirement, the inspector must:

  • tell the person the reason for the requirement to provide his or her name and residential address
  • warn the person that it is an offence to fail to state that name and residential address, unless the person has a reasonable excuse.[4]

The person must not, without reasonable excuse, refuse or fail to comply with the inspector’s requirement. To do so is an offence.[5]

If the person provides a name or residential address that the inspector reasonably believes is false, the inspector may require the person to give evidence of the correctness of the name or address.[6] Typically, the evidence might be a form of identification such as a drivers licence. It is an offence for the person to refuse or fail to give the evidence as required by the inspector, unless the person has a reasonable excuse.[7]

If the person was at a workplace which the inspector had entered, the inspector could require the person to produce documents or answer questions.


References

[1] WHS Act, section 175(1).

[2] George v Rocket [1990] HCA 26; (1990) 170 CLR 104 at 112–113.

[3] WHS Act, section 185(1).

[4] WHS Act, section 185(2).

[5] WHS Act, section 185(4). The penalty is $10,000. The evidential burden is on the accused to show a reasonable excuse.

[6] WHS Act, section 185(3).

[7] WHS Act, section 185(4).

Page last reviewed: 16 December 2019
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 12 Jul 2020

https://www.comcare.gov.au/scheme-legislation/regulating-scheme/regulatory-guides/inspectors-powers-evidence-of-offences