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Thursday, 24 November 2011
Page: 9574

Senator JACINTA COLLINS (Victoria—Parliamentary Secretary for School Education and Workplace Relations) (17:59): I will ask my officers if they can give me an example of an item that might be particularly relevant to these types of circumstances. I can imagine some circum­stances where the item of risk might be something in the nature of a substance where its removal would make a significant difference to the risks involved in a workplace as opposed to simply ceasing work. While we are thinking of a particular example that might highlight the issue, I do have some further background. The Review of National Occupational Health and Safety Laws specifically considered the need for seizure powers and recommended that inspectors be given the power to seize dangerous things at a workplace. The review also recommended that broad powers be given to inspectors in a way that consolidates the powers in current occupational health and safety legislation in various jurisdictions. Clause 176 is modelled on the equivalent Queensland provision in section 110 of the Workplace Health and Safety Act 1995. Section 44 of the Commonwealth's Occupational Health and Safety Act 1991 provides inspectors with the power to seize any plant, substance or thing at a workplace if it is reasonably necessary to do so for the purposes of an investigation.

Concerns about the seizure powers in the Workplace Health and Safety Act were previously raised by Independent Contrac­tors Australia. Specifically, ICA considered the powers to be expansive and not subject to court oversight. A number of important safeguards were included in the act. The powers are subject to the regulator's over­sight and also other checks and balances in the provisions including requirements for written notice to be given of the decision and providing a receipt for seized items. There is a defence of reasonable excuse for failure or refusal to comply and procedures are included in the model act for return of seized things, in clause 180, and access to seized things, in clause 181.

It is also not the case that there is no possibility for court oversight as higher courts such as the Supreme Court generally have inherent judicial oversight over administrative decision making. I refer to the High Court's comments in Kirk v WorkCover NSW & Ors