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safetyinspectors.com.au
Record
Guide 01 of 06
Subject
Work health and safety inspectors
Applies in
Model-law states and territories; Victoria differs
Checked

What a work health and safety inspector can do

Under the model work health and safety laws, an inspector can enter a workplace at any time, without notice and without the occupier’s consent, and then inspect, test, photograph, take samples, ask questions and require documents. Where they find a breach, they can set a date to fix it, stop a dangerous activity, or order that a site be left as it is.

General information, not legal advice. Safe Work Australia writes the model laws, and each state and territory’s regulator enforces its own version: Safe Work Australia’s list of regulators is the official place to start.

This guide takes an inspector’s powers in the order you meet them: arriving, showing who they are, looking and asking, and then acting on what they find. It draws on Safe Work Australia’s explanations and on the Commonwealth’s Work Health and Safety Act 2011, its version of the model laws. Section numbers below are that Act’s; your state’s Act may number them differently.

Check A

Which law your inspector works under

Safe Work Australia records that every jurisdiction except Victoria has put the model laws in place, each with its own variations, some of them substantial. WorkSafe Victoria enforces Victoria’s own occupational health and safety laws, so for a Victorian workplace its pages are the ones to read.

Check B

Arriving: entry, warning and homes

  • Entry at any time. An inspector may enter a place that is a workplace, or that they reasonably suspect is one, with or without the consent of the person managing or controlling it. If it turns out not to be a workplace, they must leave immediately. A search warrant can authorise entry to any place (section 163).
  • No warning beforehand. Once inside, the inspector must, as soon as practicable, take all reasonable steps to tell three people why they have come: the business whose work they are there about, the person managing or controlling the workplace, and any health and safety representative for that business’s workers. They can skip this if telling would defeat the purpose of the visit or cause unreasonable delay (section 164).
  • Homes are different. Safe Work Australia explains that an inspector can enter a home only if they reasonably suspect it is being used as a workplace, if a search warrant authorises it, or to reach a suspected workplace when there is no other way in, at a reasonable time given when the work happens. If none of these applies, they must leave.
Check C

Showing who they are

Every inspector carries an identity card from the regulator and must produce it when asked while using their compliance powers (section 157). Before requiring you to answer a question or hand over a document on the spot, an inspector must identify themselves as an inspector, warn you that failing to comply without a reasonable excuse is an offence, and explain how legal professional privilege and self-incrimination work. A request for a document has to be in writing, unless the circumstances need the inspector to see it immediately.

Check D

Looking and asking

Safe Work Australia lists what an inspector may do once inside a workplace under the model laws.

  • Inspect and examine the workplace, and ask questions there.
  • Take measurements, run tests, and make sketches or recordings, including photographs, video and audio.
  • Take samples away for analysis, without paying for them.
  • Require people to produce documents and answer questions, and to give the inspector reasonable help.
  • Seize evidence of an offence; seize a dangerous workplace or part of one, or dangerous plant, substances or structures; and seize anything that might otherwise be hidden, lost, destroyed or used to repeat the offence.
  • Take affidavits, and in some circumstances require a person’s name and address.
  • Bring an assistant, such as an interpreter or a technical expert, who may do what is reasonably needed to help but nothing the inspector has no power to do.

Interviews

You can ask for an interview to be held in private, and the inspector may choose privacy too. Either way, the inspector’s assistant and your own representative may be there.

Answers that could incriminate you

Under the model Act you cannot refuse to answer because the answer might incriminate you, though Safe Work Australia notes that some jurisdictions differ and suggests checking with your regulator. In the Commonwealth Act, for an individual, the answer, the document and anything obtained because of them are not admissible as evidence against that person in civil or criminal proceedings (section 172).

Legal advice stays yours

You do not have to hand over information or documents covered by legal professional privilege: material made for getting legal advice, or for actual or expected litigation.

Check E

Acting on what they find: three notices

Safe Work Australia describes the notices an inspector can issue when they reasonably believe the law is being broken. The detail on each slip below is from the Commonwealth Act.

Improvement notice

When: the inspector reasonably believes a person is breaching the Act, or has breached it in a way likely to continue or be repeated (section 191).

What it says: the provision involved, briefly how it is being breached, and the day by which it must be fixed, which must be reasonable. It may also say how to fix it (section 192).

Prohibition notice

When: the inspector reasonably believes an activity that is happening, or may happen, at a workplace involves or will involve a serious risk to someone’s health or safety from an immediate or imminent exposure to a hazard (section 195).

What it does: stops the activity, or stops it being done a particular way, until an inspector is satisfied that the matters causing the risk have been remedied. It can be given by word of mouth first, then confirmed in writing as soon as practicable. It may name a place where the activity must not happen, a thing that must not be used, or a procedure that must not be followed (sections 195 and 196).

Non-disturbance notice

When: the inspector reasonably believes it is needed so they can use their compliance powers (section 198).

What it does: keeps the site of a notifiable incident as it is, or stops a site or its plant being disturbed, for a stated period of no more than 7 days. Further notices can follow (sections 199 and 201).

Still allowed: helping an injured person, removing a person who has died, action essential to make the site safe or prevent another incident, police investigation work, and anything an inspector permits (section 199).

Depending on the state or territory, an inspector may also issue an infringement notice, which is an on-the-spot fine for certain breaches.

A notice must be displayed in a prominent place at or near the work it affects, and it is an offence not to display it or not to comply with it. If a notice is ignored, the regulator can ask a court for an injunction, and where a prohibition notice is not complied with, an inspector can act to make the situation safe and recover the cost.

Check F

When something is taken

When an inspector seizes something as evidence, Safe Work Australia sets out what follows under the model laws.

  • The inspector must give a receipt, unless that would be impracticable or unreasonable given what the thing is, its condition and its value.
  • The thing may be taken away, or left in place with access restricted, for example by sealing off a room; seized plant or structures may be dismantled.
  • Tampering with a seized thing, or with whatever restricts access to it, is an offence unless the inspector approves.
  • If six months pass and the thing has not been forfeited, its owner, or the person it was taken from, can apply for its return, and the regulator must return it unless there are reasonable grounds to refuse.
Check G

If you disagree with a notice

Safe Work Australia says some decisions by regulators and inspectors can be reviewed, and that your regulator is the place to ask. The route depends on where you are, as these two examples show.

Two review routes, each from its own source
WhereFirstThen
Workplaces under the Commonwealth Act, regulated by ComcareInternal review by the regulator, applied for within 14 days of learning of the decision, or within the time allowed to comply with an improvement notice if that is shorter, unless the regulator allows longer. The reviewer cannot be the person who decided, and must decide within 14 days; if they do not, the decision is taken as confirmed (sections 224 to 226). External review by the Fair Work Commission, within 14 days for most decisions and 28 days for a decision to forfeit something (section 229).
The ACTInternal review by the regulator, WorkSafe ACT, applied for within 14 days of learning of the decision, or within the time allowed to comply with an improvement notice if that is shorter, unless the regulator allows longer (section 224 of the ACT Act). The Act names the WHS Commissioner as the regulator, and WorkSafe ACT is the regulator and the Commissioner’s office together. External review by the ACT Civil and Administrative Tribunal, within 14 days of learning of the decision, or 28 days for a decision to forfeit something (section 229).

Elsewhere, ask the regulator for your state or territory, from Safe Work Australia’s list.

Check H

What the law forbids around an inspector

Under the model laws it is an offence to do any of these.

  • Refuse or fail to help an inspector without a reasonable excuse.
  • Give information that is false or misleading.
  • Hinder or obstruct an inspector.
  • Assault, threaten or intimidate an inspector, or anyone assisting one.

Safe Work Australia says any of these may lead to a full investigation and a fine or prosecution, and that impersonating an inspector is an offence as well. If you are on the other side of this, a worker who wants an inspector to come, the guide to reporting a safety concern follows that path.