Regulators monitor and enforce WHS laws in your state, territory or the Commonwealth, depending on where you work.
Their inspectors visit workplaces to:
- respond to incidents and reports
- assist in resolving workplace WHS issues
- monitor compliance with WHS laws in their jurisdiction
- investigate breaches of WHS laws
- give you advice and assistance with your WHS rights and duties.
Inspector powers to enter workplaces
An inspector may choose to enter a workplace for a variety of reasons, including:
- to respond to an incident or complaint
- as part of a planned campaign
- assist with resolution of WHS issues.
Under the model WHS laws, inspectors can enter your workplace (or what they believe is your workplace):
- without notice or consent
- where a search warrant gives authority.
Notice of Entry
An inspector must take reasonable steps to notify the following people of the entry and the purpose of the entry:
- the relevant person conducting a business or undertaking (PCBU) at the workplace
- the person with management and control of the workplace, and
- any WHS representative carrying out work for the PCBU at the workplace.
However, the inspector does not have to notify any person if it would defeat the purpose for which the place was entered or would cause unreasonable delay.
Under the model WHS laws, inspectors can only enter residential premises if:
- the inspector reasonably suspects the residential premises is used as a workplace, or
- entry is authorised by a search warrant, or
- entry is to gain access to a suspected workplace. However, the inspector must reasonably believe there is no alternative access available, and entry must be at a reasonable time, having regard to when any work is being carried out at the suspected workplace.
Inspectors must leave residential premises if one of the above criteria is not meet.
Inspector powers within a workplace
Under the model WHS laws, when an inspector attends a workplace their powers include to:
- seize evidence of an offence against the WHS Act
- seize dangerous workplaces, parts of workplaces, plant, substances or structures
- seize something so it doesn’t become hidden, lost, destroyed, or used to continue or repeat the offence
- inspect, examine and ask questions
- take measurements, conduct tests and make sketches or recordings (including photos, video and audio recordings)
- take samples for analysis without paying for it
- exercise any compliance power or other power, like requiring you to produce documents or answer questions
- take affidavits
- require a person to provide their name and address in some circumstances.
Inspector’s assistant powers
An assistant, such as an interpreter or technical expert, may attend the workplace with the inspector.
An assistant can do anything reasonably required to assist the inspector. However, an assistant cannot do anything an inspector does not have the power to do (unless permitted under a search warrant).
If an inspector is at your workplace
It’s important to be courteous and cooperate with inspectors.
An inspector may require you to give them reasonable help. Under the model WHS laws it is an offence to:
- refuse or not help without a reasonable excuse
- provide false or misleading information
- hinder or obstruct an inspector
- assault, threaten or intimidate an inspector or a person assisting an inspector.
Doing so may lead to a full investigation and can result in a fine or prosecution.
An inspector who enters a workplace may seize anything as evidence, including the workplace or part of the workplace, plant, substances or structures. Documents may also be seized. An inspector may also seize a thing to prevent it from being hidden, lost destroyed or used to continue or repeat the offence.
When an inspector seizes evidence the inspector:
- Must give a receipt for the seized thing (unless it would be impracticable or unreasonable given the thing’s nature, condition, and value).
- may take the seized thing away or leave it at the workplace but restrict access to it – for example, sealing off a room where the seized thing is located
- may dismantle seized plant or structures
- may issue a written notice requiring a person who controls a seized thing to move it or stay controlling it for a reasonable time.
Unless you have the inspector’s approval, it’s an offence to tamper, or attempt to tamper, with:
- something that has been seized
- something that restricts access to a seized thing.
It’s also an offence to fail to comply with an inspector’s written notice.
Forfeit or return of seized goods
A seized item may be forfeited in certain circumstances, such as where it is necessary to forfeit the item to prevent it being used to commit an offence.
If six months have passed since an item was seized and it has not been forfeited, the person from whom the item was seized, or the owner may apply to have the item returned. The regulator must return the item unless there are reasonable grounds to refuse returning it. The regulator can impose conditions on the return of the item.
Review of decisions
Some decisions made by a regulator or inspector are reviewable. You should contact your WHS regulator if you wish for a decision to be reviewed.