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January 2020

Powers of health and safety inspectors

Powers of health and safety inspectors

Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) (2014)

Facts

A departmental inspector, appointed under the Mine Health and Safety Act 2004 (NSW) and the Work Health and Safety (Mines) Act 2013 (NSW), was investigating the death of a Hunter Quarries employee to determine whether there had been a contravention of the health and safety duties imposed by the NSW Work Health and Safety (WHS) Act 2011.

The investigator intended to exercise his powers under section 171 of the WHS Act to obtain information in relation to the incident. Under section 171, the investigator has powers to (among other things) require individuals to:

  • tell the inspector who has custody of or access to documents;
  • produce such documents; and
  • answer questions.

The employer sought an order to restrain the investigator from obtaining information under section 171 and sought urgent clarification of what is allowed under the Act. The employer sought to establish that the investigator ought to conduct investigations by using written notices as specified under section 155.

Judgment

The Court could not grant the relief sought and dismissed the summons. The Court held that once an inspector has exercised the statutory power to enter a workplace, including for the purpose of investigating a notifiable incident, the inspector is empowered by section 171 of the WHS Act.

The Court also held that the section 171 powers are not limited by section 155 and would operate in conjunction with any formal delegation. Additionally, an inspector may only exercise powers granted by section 155 if there has been a prior written delegation by the regulator.

Lessons

You should be aware that once an inspector has exercised the statutory power to enter a workplace, the inspector is empowered by section 171 of the WHS Act to require a person at the workplace to:

  • tell them who has custody of or access to a document;
  • produce that document, either while the inspector is still at the workplace or at a later time; and
  • answer the questions that the inspector puts to them.

The case also demonstrates that the functions and powers granted to regulators and inspectors must always be read in light of the statutory purpose of the WHS Act, which is to ensure that workers and others are protected from harm to their health, safety and welfare through the practical elimination or minimisation of risks.

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