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

For: Employers and managers Information seekers

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).

An inspector is also given more specific powers that can be exercised on entry to a workplace. The specific powers include powers to seize workplaces and things that an inspector believes are defective or hazardous. These powers serve a protective purpose. The seizure is not specifically for the purposes of gathering evidence.

1. Power of seizure

An inspector who enters a workplace 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, if the inspector reasonably believes that the workplace (or part) or the plant, substance or structure 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.[1]

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

The definitions of ‘serious injury or illness’ and ‘dangerous incident’ that apply for the purposes of incident notification do not apply here.[3] The inspector will be guided by those definitions, but has some discretion in deciding the types of ‘serious injury or illness’ or ‘dangerous incident’ that warrant seizure.

If an inspector considers that circumstances warrant seizure of a dangerous workplace or thing, the inspector may also consider issuing a prohibition notice.

If an inspector considers that a workplace or thing is evidence of an offence, it may be appropriate to seize the workplace or thing under section 175.

2. Location of seized things

If an inspector has seized a thing under section 176 of 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.

The inspector may also leave the thing at the place where it was seized, but take reasonable action to restrict access to it.[4] 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 an offence.[5]

An inspector may consider that a thing that he or she intends to seize under section 176 should be relocated to enable it to be seized. 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).[6]

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.[7]

The person must not refuse or fail to comply with the requirement, unless the person has a reasonable excuse. To do so constitutes an offence.[8]

3. After seizure

If an inspector seizes a thing under section 176 of 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. The receipt must describe each thing that has been seized and its condition.[9]

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.[10]

However, no receipt is required if the nature, condition and value of the thing makes it impracticable or unreasonable to give the receipt.[11]

A seized thing may be forfeited to the Commonwealth in certain circumstances.[12] 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.[13] Comcare must return the thing unless it has reasonable grounds to retain it.[14] Comcare may return the thing subject to conditions.[15]

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:

  • the person from whom the thing was seized, or a person authorised by that person
  • the owner of the thing, or a person authorised by the owner.[16]

If the thing is a document, Comcare must also allow those persons to make copies of it at all reasonable times, unless it is impracticable or unreasonable to allow copying.[17]


References

[1] WHS Act, section 176.

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

[3] The definitions in sections 36 and 37 of the WHS Act apply in part 3 of the Act, which contains sections 35–39.

[4] WHS Act, section 177(1).

[5] WHS Act, section 177(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.

[6] WHS Act, section 177(3). The inspector may also make a further requirement in relation to the same thing if it is necessary and reasonable to do so: section 177(5).

[7] WHS Act, section 177(4).

[8] WHS Act, section 177(6). The evidential burden is on the accused to show a reasonable excuse. [1] WHS Act, section 178(1) and (3).

[9] WHS Act, section 178(1) and (3).

[10] WHS Act, section 178(2).

[11] WHS Act, section 178(4).

[12] WHS Act, section 179. The circumstances include where Comcare cannot find the person from whom it was seized, cannot return it to the person from whom it was seized or reasonably believes that forfeiture is required to prevent it being used to commit an offence against the WHS Act or Work Health and Safety Regulations 2011.

[13] WHS Act, section 180(1) and (4).

[14] WHS Act, section 180(2).

[15] WHS Act, section 180(3).

[16] WHS Act, section 181.

[17] WHS Act, section 181.

Page last reviewed: 14 March 2020
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 31 Oct 2020

https://www.comcare.gov.au/scheme-legislation/whs-act/regulatory-guides/inspectors-powers-seize-dangerous-workplaces-things