Australia: Is an enforcement notice by a safety regulator always valid? Not if the notice was issued under dictation

Organisations should carefully review the context in which enforcement notices are issued by safety regulators, following a finding by the NSW Ombudsman that SafeWork NSW inspectors, who did not hold a ‘reasonable belief' of safety contraventions, unlawfully issued enforcement notices to the Blue Mountains City Council (Council) in 2017 and 2018.

NSW Ombudsman Michael Barnes in August 2020 upheld complaints by the Council regarding prohibition and improvement notices that SafeWork NSW inspectors had issued to the Council in respect of asbestos management. Although the Council was ultimately prosecuted for asbestos-related breaches and entered into an enforceable undertaking in lieu of a fine, the Ombudsman found that in some cases enforcement notices were issued unlawfully.

In his report, the Ombudsman noted that some notices were issued ‘under dictation', meaning notices had been issued by an inspector not because they held the reasonable belief but because they were directed by another person and/or because they felt an obligation to do so. As the Ombudsman noted, acting under dictation is contrary to law.

The Ombudsman found that these notices were issued in part because of an inadequate understanding of section 162 of the Work Health and Safety Act (WHS Act). That section expressly allows SafeWork NSW to give some direction to inspectors in certain situations, but not in the case of enforcement notices.

Importantly, when issuing an enforcement notice, the inspector must personally hold a reasonable belief that there is a breach of the WHS Act. The fact that another inspector or officer of SafeWork says that they believe the notice should be issued is not sufficient, or even relevant, even if that other inspector or officer is more senior.

SafeWork accepted the Ombudsman's recommendations, including specific training for SafeWork inspectors on this issue as well as an apology to the Council.

Lessons for employers

The report by the Ombudsman is an important reminder that employers need to carefully consider any enforcement notices issued to them. In particular, it is fundamental to assess whether a ‘reasonable belief' can be said to be held personally by the inspector. Relevant facts must be known to the inspector that has caused them to consider, reasonably, that an offence has occurred. If no such belief is reasonably held, the notice can be challenged.

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