Victorian Numbered Acts Victorian Numbered ActsFor section 93 of the Principal Act substitute —
(1) An inspector is subject to the Department Head's directions in the performance of his or her functions or in the exercise of his or her powers under this Act or the regulations.
(2) A direction under sub-section (1) may be of a general nature or may relate to a specified matter or specified class of matter.
(1) An inspector may enter a place that the inspector reasonably believes is a worksite at any time during working hours.
(2) However, an inspector may enter any place that the inspector reasonably believes is a worksite at any time if the inspector reasonably believes that there is an immediate risk to the environment arising from the conduct of an undertaking at the place.
An inspector who enters a place under this Division may do any of the following—
(a) inspect, examine and make enquiries at the place;
(b) inspect and examine any thing (including a document) at the place;
(c) bring any equipment or materials to the place that may be required;
(d) seize any thing (including a document) at the place that may afford evidence of the commission of an offence against this Act or the regulations;
(e) seize any thing at the place for further examination or testing but only if the inspector reasonably believes that the examination or testing is reasonably necessary and cannot be reasonably conducted on site;
(f) take photographs or measurements or make sketches or recordings;
(g) exercise any other power conferred on the inspector by this Act or the regulations;
(h) do any other thing that is reasonably necessary for the purpose of the inspector performing his or her functions or exercising his or her powers under this Act or the regulations.
Note: The powers conferred by this section are limited if all or part of the place is used only for residential purposes (see section 95I).
(1) An inspector who enters a place under this Division may—
(a) require a person to produce a document or part of a document located at the place that is in the person's possession or control; and
(b) examine that document or part; and
(c) require a person at the place to answer any questions put by the inspector.
(2) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under sub-section (1).
Penalty: In the case of a corporation, 300 penalty units;
In any other case 60 penalty units.
(3) Before requiring a person to produce a document or part of a document or to answer questions under sub-section (1), an inspector—
(a) must produce his or her identity card for inspection by the person and warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and
(b) must inform the person that he or she may refuse or fail to answer any question if answering the question would tend to incriminate him or her.
(4) A person is not liable to be prosecuted for an offence against sub-section (2) if the inspector concerned failed to comply with sub-section (3).
Note 1: The powers conferred by this section are limited if all or part of the place is used only for residential purposes (see section 95I).
Note 2: This section does not affect legal professional privilege (see section 95T) or, in the case of a requirement to answer questions, the privilege against self-incrimination (see section 95S).
(1) An inspector who enters a place under this Division may take (without payment) samples of any thing at the place that may be required for analysis.
(2) If an inspector intends to take a sample, he or she must notify the occupier or apparent occupier for the time being of the place of his or her intention.
(3) Unless it is unsafe to do so, after taking the sample the inspector must—
(a) divide it into as many parts as are necessary and mark and seal or fasten up each part in a way that the nature of the sample allows; and
(b) if the occupier or apparent occupier requires the inspector to give them a part, give one part to that person; and
(c) keep one part for future comparison.
(4) If it is determined that the sample is to be analysed the inspector must submit another part to an analyst for that purpose.
(1) Immediately on entering a place under Division 3, an inspector must take all reasonable steps to notify the occupier or apparent occupier for the time being of the place of the entry and to produce his or her identity card for inspection by that person.
(2) However, an inspector is not required to notify, or produce his or her identity card for inspection by, a person if—
(a) to do so would defeat the purpose for which the place was entered or cause unreasonable delay; or
(b) the person is already aware that the inspector has entered the place or was notified in advance of when he or she would enter.
(1) An inspector who enters a place under Division 3 must give a report concerning the entry when, or as soon as practicable after, the inspector leaves the place to the occupier or apparent occupier for the time being of the place.
(2) The report must be in writing and include—
(a) the time of the entry and departure; and
(b) the purpose of the entry; and
(c) a description of things done while at the place; and
(d) a summary of the inspector's observations while at the place; and
(e) the procedure for contacting the Department Head and the inspector for further details of the entry; and
(f) the procedure for seeking review of any decision made by the inspector during the entry.
(3) If the inspector takes photographs or makes sketches or recordings under section 95(f), the report must also include a statement that—
(a) the photographs have been taken or sketches or recordings have been made; and
(b) they are or will be available for inspection at a specified place.
(4) A report under this section may be combined with a report given by the inspector under section 103 of the Occupational Health and Safety Act 2004 in respect of that place.
In this Division a "place" includes a worksite, premises and a vehicle.
(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to a particular place if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, a particular thing (including a document) at the place that may afford evidence of the commission of an offence against this Act or the regulations.
(2) A magistrate may issue the search warrant if he or she is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within 72 hours, a particular thing (including a document) at the place that may afford evidence of the commission of an offence against this Act or the regulations.
(3) The search warrant may authorise a named inspector and any assistants the inspector considers necessary—
(a) to enter the place or part of the place named or described in the warrant; and
(b) to search for the thing named or described in the warrant.
(4) In addition to any other requirement, the search warrant must state—
(a) the offence suspected; and
(b) the place to be searched; and
(c) a description of the thing for which the search is to be made; and
(d) any conditions to which the warrant is subject; and
(e) whether entry is authorised to be made at any time or during specified hours; and
(f) that the warrant authorises entry on only one occasion; and
(g) a day, not later than 7 days after the warrant is issued, on which it ceases to have effect.
(5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.
(6) The rules that apply to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to search warrants under this section.
(1) Before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must—
(a) announce that he or she is authorised by the warrant to enter the place; and
(b) give any person at the place an opportunity to allow that entry.
(2) However, the inspector or an assistant to the inspector need not comply with sub-section (1) if he or she believes on reasonable grounds that immediate entry to the place is needed to ensure that the effective execution of the warrant is not frustrated.
If an occupier or apparent occupier is present at the place when a search warrant is being executed, the inspector must—
(a) identify himself or herself to that person by producing his or her identity card for inspection; and
(b) give that person a copy of the execution copy of the warrant.
Despite anything else in this Part, the powers of an inspector under this Part in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except—
(a) with the consent of the occupier for the time being of the place; or
(b) under the authority conferred by a search warrant.
(1) As soon as possible after an inspector seizes any thing (including a document) under this Part the Department Head must return the thing to the owner unless—
(a) the Department Head considers it necessary to retain the thing because it may afford evidence in proceedings, that have been or may be commenced, for an offence against this Act or the regulations; or
(b) the thing is forfeited to the Crown under section 95K; or
(c) the Department Head is otherwise authorised (by a law or court order) to retain, destroy or dispose of the thing.
(2) The thing may be returned either unconditionally or on such terms and conditions as the Department Head considers appropriate.
(3) If the Department Head imposes terms or conditions on the return of a thing, the owner must comply with each of those terms and conditions.
Penalty: In the case of a corporation, 300 penalty units;
In any other case 60 penalty units.
Any thing (including a document) that an inspector has seized and retained under this Part is forfeited to the Crown if the Department Head—
(a) cannot find its owner despite making reasonable enquiries; or
(b) cannot return it to the owner despite making reasonable efforts.
(1) An inspector may ask a person to state his or her name and address if the inspector reasonably believes that the person—
(a) may be able to assist in the investigation of an offence under this Act that has been committed or is suspected of having been committed; or
(b) has committed or is about to commit an offence under this Act or the regulations.
(2) The inspector must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.
(3) A person who, in response to being asked to state his or her name and address in accordance with this section—
(a) refuses or fails to do so; or
(b) states a name that is false in a material particular; or
(c) states an address other than the full and correct address of his or her ordinary place of residence or business—
is guilty of an offence and liable to a fine not exceeding 5 penalty units.
(4) A person who is asked to state his or her name and address may ask the inspector to produce his or her identity card for inspection.
(1) An inspector may give a direction (either orally or in writing) to a person at a worksite if the inspector reasonably believes that it is necessary to do so because of an immediate risk to the environment.
(2) A person must not, without reasonable excuse, refuse or fail to comply with a direction given to the person under sub-section (1).
Penalty: In the case of a corporation, 500 penalty units;
In any other case 100 penalty units.
The occupier or apparent occupier for the time being of a worksite must not, without reasonable excuse, refuse or fail to provide such assistance as an inspector may reasonably require for the performance of his or her functions or exercise of his or her powers under this Act or the regulations.
Penalty: In the case of a corporation, 300 penalty units;
In any other case 60 penalty units.
(1) For the purpose of exercising a power under this Act or the regulations, an inspector may seek the assistance of any person.
(2) If the power being exercised involves entry to a worksite, the occupier or apparent occupier for the time being of the worksite must allow the person assisting access to that worksite.
Penalty: In the case of a corporation, 300 penalty units;
In any other case 60 penalty units.
(3) If an inspector uses the assistance of an interpreter—
(a) any enquiry or request made by the interpreter on the inspector's behalf is taken to have been made by the inspector; and
(b) any answer given to the interpreter is taken to have been given to the inspector.
An inspector is authorised to take affidavits for any purpose relating or incidental to the performance of his or her functions or exercise of his or her powers under this Act or the regulations.
An inspector may make copies of, or take extracts from, a document or part of a document given to the inspector in accordance with a requirement under this Act or the regulations.
(1) A person must not wilfully assault, obstruct or attempt to obstruct, threaten, intimidate or attempt to intimidate an inspector in the exercise of the inspector's powers or the discharge of the inspector's duties.
Penalty: In the case of a corporation, 1000 penalty units;
s. 49
In any other case, 200 penalty units.
(2) A person must not—
(a) contravene or fail to comply with any lawful requirement of an inspector; or
(b) make to an inspector exercising a power or discharging a duty under this Act a statement knowing it to be false or misleading in any particular.
Penalty: In the case of a corporation, 500 penalty units;
In any other case, 100 penalty units.
(3) A reference in this section to an inspector includes a reference to a person acting under an instrument of delegation under section 91(b).
(1) A natural person may refuse or fail to give information or do any other thing that the person is required to do by or under this Part if giving the information or doing the other thing would tend to incriminate the person.
(2) However, sub-section (1) does not apply to—
(a) the production of a document or part of a document that the person is required by this Part to produce; or
(b) the giving of a person's name or address in accordance with section 95L.
Nothing in this Act or the regulations—
(a) entitles or requires a person to disclose information that is the subject of legal professional privilege; or
(b) affects the law or practice relating to legal professional privilege.'.