On 1 January 2012 the Work Health and Safety Act 2011 commenced in Queensland. It mirrored legislation by the Commonwealth and Territories and was also adopted by New South Wales and later by Tasmania and South Australia on 1 January 2013. Victoria and Western Australia are in the throes of tweaking somewhat similar legislation.
It does not apply in Queensland to particular industries, including general mining, quarrying, coal and gas mining and rail, which is covered by other legislation.
In issue was whether s.171 Work Health and Safety Act 2011 (NSW) extended to request information of possible historical breaches of the Act, or allowed investigations to be pursued to determine whether a notifiable incident amounted to an offence under the Act, upon entering the workplace following a notifiable incident.
A declaration was brought by Hunter Quarries Pty Ltd (Hunter’s) contending that the appropriate course was for the regulator to issue a notice pursuant to s.155 of the Act.
Queensland has analogous provisions.
Justice Schmidt disagreed with Hunter’s view and preferred the interpretation of the Department and inspector:
In the result it must be concluded that inspectors who, under s 163 may at any time enter into “a place that is, or that the inspector reasonably suspects is, a workplace”, with or without “the consent of the person with management or control of the workplace”, may thereupon exercise the powers granted by s 171. That includes a time when the inspector enters in order to pursue an investigation into an incident notified under s 38, a time at which the site ought have been preserved, as s 39 requires.
Upon such entry an inspector may exercise the various powers granted by Division 3, including the general powers of inspection, examination and inquiry granted by s 165(1)(a) and “any compliance power or other power that is reasonably necessary for the purposes of the Act specified in s 3” (s 165(1)(g)). The Inspector may then also require persons at the workplace to provide him with reasonable help (s 165(f)) and may exercise the other specific powers granted in Subdivision 2 “Search warrants” and Subdivision 4 “Specific powers of entry”. The latter includes powers as to the production of documents and the provision of answers to questions (s 171), with a resulting abrogation of the privilege against self-incrimination (s 172); as well as powers to copy and retain documents (s 174); to seize evidence (s 175); and to seize dangerous workplaces and things found there, which the inspector reasonably believes ‘is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur’ (s 176).
On the proper construction of this Act, once an inspector has so exercised the statutory power of entry at a workplace, he or she is empowered by s 171 to require a person to tell him or her who has custody of or access to a document; to require that person to produce that document, while the inspector is still at the workplace, or later; and to require a person at the workplace to answer the questions which the inspector puts. That power is not displaced, limited or circumscribed by the powers granted to regulators by s 155 of the Act.
An inspector may only exercise the powers granted by s 155 if they are delegated by the regulator by instrument in writing under s 154. Exercise of those powers is not limited to entry at a workplace, but depends upon the inspector first forming the opinion on which the exercise of the s 155 powers depend.
It was for these reasons that the relief sought could not be granted and the summons was dismissed.
David Cormack – Brisbane Barrister & Mediator