South Australian Current Acts

WORK HEALTH AND SAFETY ACT 2012 - SECT 118

118—Rights that may be exercised while at workplace

        (1)         While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act:

            (a)         inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;

            (ab)         during the inspection—

                  (i)         take measurements or conduct tests directly relevant to the suspected contravention; and

                  (ii)         take photos and videos directly relevant to the suspected contravention;

            (b)         consult with the relevant workers in relation to the suspected contravention;

            (c)         consult with the relevant person conducting a business or undertaking about the suspected contravention;

            (d)         require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that—

                  (i)         is kept at the workplace; or

                  (ii)         is accessible from a computer that is kept at the workplace;

            (e)         warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk.

        (1a)         In taking measurements and conducting tests under subsection (1)(ab), the WHS entry permit holder—

            (a)         may bring to the workplace and use equipment and materials that are reasonably necessary for the measurements or tests; and

            (b)         must take account of the need to take the measurements and conduct the tests in compliance with this Act and other relevant laws.

        (1b)         Despite subsection (1)(ab)—

            (a)         insofar as is reasonably practicable, a photo or video must not be taken that records the image or voice of a person other than—

                  (i)         a relevant worker; or

                  (ii)         a worker at the workplace whose actions are directly affecting a relevant worker; or

                  (iii)         an inspector or emergency services worker attending the workplace; or

                  (iv)         a WHS entry permit holder attending the workplace; and

            (b)         a photo or video must not be live streamed.

        (1c)         Nothing in this section prevents a photo or video being taken for the purpose of documenting a person hindering or obstructing another person in contravention of this Part.

        (2)         Despite subsection (1)—

            (a)         the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and

            (b)         the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

Note—

See also section 148 and the Privacy Act 1988 of the Commonwealth in relation to limits on the disclosure and use of information collected under this section.

        (3)         A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d).

WHS civil penalty provision.

Maximum penalty:

            (a)         in the case of an individual—$10 000;

            (b)         in the case of a body corporate—$50 000.

        (4)         Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.