What is the meaning of ON SAFE Act?

Part 5 Investigations

Division 1 Appointment of inspectors

47   Appointment of inspectors (otherwise than in connection with mines)

(1)  WorkCover may appoint as inspectors for the purposes of this Act and the regulations any of the following persons:

(c)  a person employed by a public or local authority,

(d)  a person belonging to a class of persons prescribed by the regulations.

(2)  A person appointed as an inspector under this section is not authorised to exercise functions under this Act in relation to a mine.

s 47: Am 2002 No 50, Sch 4 [2] [3].

47A   Appointment of inspectors in connection with mines

(1)  The Minister may appoint as an inspector for the purposes of this Act and the regulations any person who is, or could be appointed or designated as, an inspector, mine safety officer or investigator under the Coal Mines Regulation Act 1982 or the Mines Inspection Act 1901.

(2)  An instrument appointing a person as an inspector under this section may limit the functions that the person has as such an inspector.

(3)  A person appointed as an inspector under this section is only authorised to exercise functions under this Act in relation to a mine, but may exercise functions under Division 2 in relation to premises other than a mine for the purpose of investigating any matter under this Act in relation to a mine.

s 47A: Ins 2002 No 50, Sch 4 [4].

48   Identification of inspectors

(1)  Every inspector appointed under section 47 or 47A is to be issued with an identification card as an inspector that complies with this section.

(2)  The identification card must:

(a)  state that it is issued under this Act, and

(b)  give the name of the person to whom it is issued, and

(c)  state the date (if any) on which it expires, and

(d)  describe the kinds of premises to which the powers of the inspector extend, and

(e)  state any limitations on the functions that the inspector is authorised to exercise under this Act that are imposed by the inspector’s instrument of appointment, and

(f)  bear the signature of:

(i)  in the case of an inspector appointed under section 47, the Chief Executive Officer of WorkCover or an officer approved by the Chief Executive Officer of WorkCover for the purposes of this paragraph, or

(ii)  in the case of an inspector appointed under section 47A, the Minister or a person authorised by the Minister.

(3)  Nothing in this section prevents a single identification card being issued to a person in respect of functions to be exercised as an inspector under section 47A and functions to be exercised under the Coal Mines Regulation Act 1982 or the Mines Inspection Act 1901, or both.

s 48: Subst 2002 No 50, Sch 4 [5]. Am 2004 No 111, Sch 1 [1].

Division 2 Powers of inspectors

Note—

See Part 6 for powers of inspectors to issue investigation, improvement or prohibition notices.

49   (Repealed)

s 49: Rep 2002 No 50, Sch 4 [6].

50   Powers of entry for places of work

For the purposes of this Act or the regulations, an inspector may enter any premises the inspector has reason to believe is a place of work.

Note—

See section 57 with respect to entry into any part of premises used only for residential purposes.

52   Production of authority to enter premises

(1)  A power conferred on an inspector by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the inspector proposing to exercise the power is in possession of the identification card issued to the inspector and produces the identification card if required to do so by the occupier of the premises.

(2)  This section does not apply to a power conferred by a search warrant.

53   Time for entry into premises

(1)  Entry under a power conferred by this Division may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on at the premises.

(2)  This section does not apply to a power conferred by a search warrant.

54   Use of force on entry

(1)  Reasonable force may be used for the purpose of gaining entry to premises under a power conferred by this Division, but only if authorised by WorkCover in accordance with this section or in cases of emergency.

(2)  The authority of WorkCover:

(a)  must be in writing, and

(b)  must be given in respect of the particular entry concerned, and

(c)  must specify the circumstances that are required to exist before force may be used.

(3)  This section does not apply to a power conferred by a search warrant and does not affect section 70 of the Law Enforcement (Powers and Responsibilities) Act 2002.

s 54: Am 2002 No 103, Sch 4.60 [1].

55   Notification of use of force on entry

(1)  An inspector authorised to enter premises under this Division who uses force for the purpose of gaining entry to the premises must promptly advise WorkCover of the use of force.

(2)  WorkCover must give written notice of the entry to such persons or authorities as appear to WorkCover to be appropriate in the circumstances.

57   Entry to premises used for residential purposes

The powers of entry conferred by this Division are not exercisable in relation to any part of premises used only for residential purposes except:

(a)  with the permission of the occupier of the premises, or

(b)  under the authority conferred by a search warrant.

59   General powers available on entry

For the purposes of this Act or the regulations, an inspector who enters premises under this Division may do any of the following:

(a)  make searches, inspections, examinations and tests (and take photographs and make video and audio recordings),

(b)  take for analysis a sample of any substance or thing which in the inspector’s opinion may be, or may contain or be contaminated by, a substance (or a degradation product of a substance) that is a risk to health,

(c)  in the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined,

(d)  carry out biological tests in such manner and in such circumstances as may be prescribed by the regulations,

(e)  require any person in or about those premises to answer questions or otherwise furnish information,

(f)  require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector’s functions,

(g)  require the production of and inspect any documents in or about those premises,

(h)  take copies of or extracts from any such documents,

(i)  exercise all other functions that are conferred by, or are reasonably necessary for the purposes of, this Act or the regulations.

60   Powers available on entry to dismantle, take and keep things

For the purposes of this Act or the regulations, an inspector who enters premises under this Division may do any of the following:

(a)  dismantle any plant or other thing on the premises for the purpose of examination, if the inspector believes on reasonable grounds that the plant or other thing has been used in the commission of an offence against this Act or the regulations,

(b)  take any plant, substance or other thing (or any sample of a substance) from the premises, if the inspector believes on reasonable grounds that the plant, substance or other thing has been used in the commission of an offence against this Act or the regulations,

(c)  keep any plant, substance, sample or other thing taken under this section that:

(i)  may reasonably be required as evidence in proceedings for an offence against this Act or the regulations, or

(ii)  might, if not so kept, be used to continue or repeat the offence.

Note—

See sections 70–75 for provisions relating to the exercise of the above powers.

62   Power of inspectors to obtain information, documents and evidence

(1)  An inspector may, by notice in writing served on a person, require the person to do any one or more of the following things if the inspector has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the regulations:

(a)  to give an inspector, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge,

(b)  to produce to an inspector, in accordance with the notice, any such documents,

(c)  to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.

(2)  A notice under this section must contain a warning that a failure to comply with the notice is an offence.

(3)  An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.

(4)  An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy.

(5)  A certified copy provided under subsection (4) is receivable in all courts as if it were the original.

(6)  Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document.

63   Power of inspector to demand name and address

(1)  An inspector may require a person whom the inspector reasonably suspects has committed an offence against this Act or the regulations to state the person’s full name and residential address.

(2)  The inspector may request the person to provide reasonable proof of the person’s identity.

(3)  A person who, without reasonable excuse, fails to comply with a requirement of an inspector under this section is guilty of an offence.

Maximum penalty: 15 penalty units.

(4)  A person does not commit an offence against this section if:

(a)  the inspector does not, at the time when the inspector makes the requirement, show the person the inspector’s identification card, or

(b)  the inspector does not, at the time when the inspector makes the requirement, warn the person that it would be an offence not to comply with the requirement.

64   Attendance of inspector at coronial inquest

An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of any employee while employed at a place of work.

65   Protection from incrimination

(1) Self-incrimination not an excuse A person is not excused from a requirement under this Division to make a statement, to give or furnish information, to answer a question or to produce a document on the ground that the statement, information, answer or document might incriminate the person or make the person liable to a penalty.

(2) Statement, information or answer not admissible if objection made However, any statement made or any information or answer given or furnished by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Division) if:

(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or

(b)  the person was not warned at an appropriate time that the person may object to making the statement or giving or furnishing the information or answer on the ground that it might incriminate the person.

(2A) Appropriate time for giving warning about incrimination An appropriate time for warning a person as referred to in subsection (2) (b) is any of the following times:

(a)  the time when the requirement to make the statement or to give or furnish the answer or information is made,

(b)  in the case of evidence required to be given when appearing before an inspector, any time after the start of the appearance before the inspector,

(c)  at or about the time immediately before the person makes the statement or gives or furnishes the answer or information.

(3) Documents admissible Any document produced by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.

(4) Further information Further information obtained as a result of a document produced, a statement made or information or an answer given or furnished in compliance with a requirement under this Division is not inadmissible on the ground:

(a)  that the document, statement, information or answer had to be produced, made, given or furnished, or

(b)  that the document, statement, information or answer might incriminate the person.

s 65: Am 2003 No 29, Sch 3 [2] [3].

67   Offence of impersonating an inspector

A person must not impersonate, or falsely represent that the person is, an inspector.

Maximum penalty: 100 penalty units.

68   Inspector may request assistance

(1)  A police officer may accompany and take all reasonable steps to assist an inspector in the exercise of the inspector’s functions under this Division:

(a)  in executing a search warrant issued under section 58, or

(b)  if the inspector reasonably believes that he or she may be obstructed in the exercise of those functions.

(2)  Any person whom an inspector believes to be capable of providing assistance in the exercise of the inspector’s functions under this Division may accompany the inspector and take all reasonable steps to assist the inspector in the exercise of the inspector’s functions.

(3)  Nothing in subsection (1) is to be taken to limit the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002.

s 68: Am 2002 No 103, Sch 4.60 [5].

69   Power of employees’ representative to accompany inspector

An inspector who is proposing to undertake an inspection of a place of work with respect to a matter that may affect the health, safety or welfare of employees at the place of work:

(a)  must, to the extent that it is practicable, consult a representative of the employees or an industrial organisation of employees whose members are employed at the place of work, and

(b)  must, if requested to do so by the representative, take the representative on any such inspection.

70   Notice of taking or dismantling plant, substances or other things

(1)  Before exercising any of the powers under section 60 (Powers available on entry to dismantle, take and keep things), an inspector must give notice to the occupier of a place of work where the thing is situated of the inspector’s intention to exercise that power.

(2)  The notice must specify the date and time when the inspector proposes to exercise the powers as well as the thing in relation to which the powers are to be exercised.

71   Powers supporting taking of things

(1)  Having taken a thing under section 60, an inspector may:

(a)  move the thing from the place where it was taken, or

(b)  leave the thing at the place but take reasonable action to restrict access to it, or

(c)  if the thing is plant—dismantle it.

(2)  The following are examples of restricting access to a thing:

(a)  sealing a thing and marking it to show access to it is restricted,

(b)  sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted.

(3)  If an inspector restricts access to a thing taken, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector’s approval.

Maximum penalty: 40 penalty units.

(4)  To enable a thing to be taken under section 60, an inspector may require the person in control of it:

(a)  to take it to a stated reasonable place by a stated reasonable time, and

(b)  if necessary, to remain in control of it at the stated place for a reasonable time.

(5)  The requirement:

(a)  must be made by notice in the form approved by WorkCover, or

(b)  if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice in that approved form as soon as practicable.

(6)  The person must comply with the requirement unless the person has a reasonable excuse for not complying.

Maximum penalty: 40 penalty units.

(7)  A further requirement may be made under this section in relation to the same thing if it is necessary and reasonable to make the further requirement.

72   Receipt for things taken

(1)  As soon as reasonably practicable after an inspector takes a thing under section 60, the inspector must give a receipt for it to the person from whom it was taken.

(2)  However, if for any reason it is not practicable to comply with subsection (1), the inspector must leave the receipt in a conspicuous position and in a reasonably secure way at the place where the thing was taken.

(3)  The receipt must describe generally each thing taken and its condition.

(4)  This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt required by this section (given the thing’s nature, condition and value).

73   Forfeiture of things taken

(1)  A thing taken under section 60 is forfeited to the State if the inspector who took the thing:

(a)  cannot find its owner after making reasonable inquiries, or

(b)  cannot return it to its owner, after making reasonable efforts, or

(c)  reasonably believes it is necessary to retain the thing to prevent it being used to commit an offence against this Act or the regulations.

(2)  Subsection (1) (a) does not require the inspector to make inquiries if it would be unreasonable to make inquiries to find the owner, and subsection (1) (b) does not require the inspector to make efforts if it would be unreasonable to make efforts to return the thing to its owner.

(3)  If the inspector decides to forfeit a thing under subsection (1) (c), the inspector must tell the owner of the decision by written notice.

(4)  Subsection (3) does not apply if:

(a)  the inspector cannot find its owner, after making reasonable inquiries, or

(b)  it is impracticable or would be unreasonable to give the notice.

(5)  The notice must state:

(a)  the reasons for the decision, and

(b)  that the owner may apply within 28 days for the decision to be reviewed by WorkCover, and

(c)  how the owner may apply for the review, and

(d)  that the owner may apply for a stay of the decision if the owner applies for a review.

Division 4 of Part 6 applies to the notice in the same way as it applies to a prohibition notice.

(6)  In deciding whether and, if so, what inquiries and efforts are reasonable or whether it would be unreasonable to give notice about a thing, regard must be had to the thing’s nature, condition and value.

74   Return of things taken

(1)  If a thing taken under section 60 has not been forfeited, the inspector must return it to its owner at the end of:

(b)  if a proceeding for an offence involving it is started within 6 months—the proceeding and any appeal from the proceeding.

(2)  Despite subsection (1), unless the thing has been forfeited, the inspector must immediately return a thing taken as evidence to its owner if the inspector stops being satisfied its continued retention as evidence is necessary.

75   Access to things taken

(1)  Until a thing taken under section 60 is forfeited or returned, an inspector must allow its owner to inspect it and, if it is a document, to copy it.

(2)  Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

Division 3 Entry and inspection powers of authorised employees’ representatives

77   Powers of entry of places of work

An authorised representative of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, enter any premises the representative has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.

79   Authority to enter premises

(1)  A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority issued by the Industrial Registrar under Part 7 of Chapter 5 of the Industrial Relations Act 1996 and produces the authority if required to do so by the occupier of the premises.

(2)  Entry may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on at the premises.

80   Entry to premises used for residential purposes

The powers of entry conferred by this Division are not exercisable in relation to any part of premises used only for residential purposes except with the permission of the occupier of the premises.

81   Powers available on entry

For the purpose of investigating any suspected breach of the occupational health and safety legislation, an authorised representative who enters premises under this Division may do any of the following:

(a)  make searches and inspections (and take photographs and make video and audio recordings),

(b)  require the occupier of those premises to provide the authorised representative with such assistance and facilities as is or are reasonably necessary to enable the representative to exercise his or her functions under this Division,

(c)  require the production of and inspect any documents in or about those premises that directly affect or directly deal with the occupational health and safety of employees working at those premises,

(d)  take copies of or extracts from any such documents.

83   Authorised representative may request assistance from inspector

An inspector may accompany and take all reasonable steps to assist an authorised representative in the exercise of the representative’s functions under this Division if the representative reasonably believes that he or she may be obstructed in the exercise of those functions.

84   Offence of failing to comply with requirement of authorised representative

A person must not, without reasonable excuse, refuse or fail to comply with a requirement made by an authorised representative in accordance with this Division.

Maximum penalty: 20 penalty units.

85   Offence of impersonating an authorised representative

A person must not impersonate, or falsely represent that the person is, an authorised representative.

Maximum penalty: 100 penalty units.

Division 4 Incidents at places of work

pt 5, div 4, hdg: Subst 2003 No 29, Sch 3 [4].

86   Notification of incidents

(1)  The occupier of any place of work must give WorkCover notice in accordance with this section of any of the following incidents:

(a)  any serious incident at the place of work (as referred to in section 87),

(b)  any incident occurring at or in relation to the place of work that the regulations declare to be an incident that is required to be notified to WorkCover.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—750 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or

(c)  in the case of an individual (being a previous offender)—375 penalty units, or

(d)  in the case of an individual (not being a previous offender)—250 penalty units.

(2)  Any such notice must be given:

(a)  as soon as practicable (but not later than 7 days) after the occupier becomes aware of the incident, and

(b)  in the manner and form required by the regulations.

(3)  Any such notice must, in the case of a serious incident, also be given:

(a)  immediately the occupier becomes aware of the incident, and

(b)  by the quickest available means.

This subsection does not apply if the occupier is aware that another person has given WorkCover notice of the incident.

(3A)  Despite subsection (1), an occupier is not required to give notice under this section if the occupier has given notice of the incident in accordance with section 44 (2) of the Workplace Injury Management and Workers Compensation Act 1998.

(4)  The regulations may vary the obligations under this section with respect to the person required to give notice and the time and manner in which the notice is to be given.

(5)  This section does not apply to a mine.

s 86: Am 2003 No 29, Sch 3 [5]–[11].

87   Non-disturbance of plant involved in serious incidents (and of surrounding area)

(1)  In this section:

serious incident means:

(a)  an incident that has resulted in a person being killed, or

(b)  any other incident prescribed by the regulations for the purposes of this definition.

(2)  The occupier of a place of work must take measures to ensure that:

(a)  plant at that place is not used, moved or interfered with after it has been involved in a serious incident, and

(b)  the area at that place that is within 4 metres (or, if the regulations prescribe some other distance, that other distance) of the location of a serious incident is not disturbed.

Maximum penalty:

(a)  in the case of a corporation (being a previous offender)—750 penalty units, or

(b)  in the case of a corporation (not being a previous offender)—500 penalty units, or

(c)  in the case of an individual (being a previous offender)—375 penalty units, or

(d)  in the case of an individual (not being a previous offender)—250 penalty units.

(3)  If the regulations prescribe measures that satisfy the requirements of this section, the occupier is taken to have satisfied those requirements if the occupier has taken the measures so prescribed.

(4)  This section does not prevent any action:

(a)  to help or remove a trapped or injured person or to remove a body, or

(b)  to avoid injury to a person or damage to property, or

(c)  for the purposes of any police investigation, or

(d)  in accordance with a direction or permission of an inspector, or

(e)  in such other circumstances as may be prescribed by the regulations.

(5)  The requirements of this section in relation to any particular incident apply only for the period ending 36 hours after notification of the incident in accordance with section 86. After the end of that period, non-disturbance requirements may apply by virtue of an investigation notice under Part 6.

(6)  This section does not apply to a mine.

s 87: Am 2003 No 29, Sch 3 [12]–[14].

88   Minister may require and publish special reports into incidents

(1)  The Minister may direct WorkCover, or any department of the Government responsible to the Minister, to prepare a special report for the Minister with respect to:

(a)  any incident that occurred at a place of work and that caused the death of or bodily injury to any person, or

(b)  any incident at a place of work that constituted a danger to any person.

(2)  The Minister may, if the Minister thinks fit, cause such a report or any part of such a report to be made public, whether by causing the report or part of the report to be published or otherwise. The Minister may table a copy of the report in Parliament.

(3)  No liability is incurred by the State and no personal liability is incurred by, or by any person acting at the direction of, the Minister, WorkCover or a department of the Government in respect of anything done in good faith in connection with the preparation or making public of a report under this section.

(4)  No liability is incurred by a person for publishing in good faith:

(a)  a report made public under this section, or

(b)  a fair report or summary of such a report.

(5)  This section applies to a mine.

(6)  In this section:

liability includes liability in defamation.

the State includes the Crown in right of the State and the Government of the State.

s 88: Am 2003 No 29, Sch 3 [15].