Workplace investigations under the harmonised OHS laws

Harmonised OHS laws are due to commence on 1 January 2012. Each Australian state and territory has committed to adopting a form of the model Workplace Health and Safety Act (Model Act). Not all states and territories will adopt all parts of the Model Act as it is presently drafted. One area where there appears to be no disagreement is the provisions for workplace investigations.

The importance of the provisions for workplace investigations is that persons will be compelled to provide information and documents, and to answer questions by inspectors even if those documents or answers may tend to incriminate the person. This position is similar to the present one in New South Wales.

It will be of paramount importance under the Model Act that persons who are requested by an inspector to produce information, documentation or give statements ensure that they ask the inspector to exercise his or her powers formally so that the person will be able to rely on the protections available under the Model Act.

Inspectors’ powers

Under the Model Act, and consistent with existing legislation, inspectors will have broad powers to enter workplaces. This entry can be made whether or not the person with the management or control of that workplace consents or receives prior notice.

Upon entry, inspectors will have entry powers similar to those presently available in existing state and territory safety legislation. These entry powers will include powers to:

1. Inspect, examine and make enquires at the workplace;
2. Inspect and examine anything at the workplace including a document;
3. Bring to the workplace and use any equipment or materials that may be required;
4. Take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings);
5. Take and remove for analysis a sample of any substance or thing without paying for it;
6. Require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (1) to (5);
7. Exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of the Act.

Penalties apply to any person who, without reasonable excuse, refuses or fails to comply with any such requirement. These penalties are a maximum of $50,000 for corporations and $10,000 for individuals.

The Model Act also provides for the following specific powers on entry:

1. A requirement for a person to tell the inspector who has custody of, or access to, a document;
2. A requirement for a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at the workplace or within a specified period; and
3. A requirement for a person at the workplace to answer any questions put by the inspector.

The requirement in (2) above (ie, to produce a document) must be made by written notice unless the circumstances require the inspector to have immediate access to the document. This is different to the existing practice in New South Wales where a person may ask an inspector to issue a section 62 notice to compel that person to provide information, documentation or a statement.

Where an inspector conducts an interview, that interview must be conducted ‘in private’ if the inspector considers it appropriate or the person being interviewed so requests. The Model Act does not define the phrase ‘in private’. However, the relevant provision makes it clear that a representative of the person (including a legal representative) may be present at the interview. On this basis ‘in private’ must mean in a room with the door closed and not by excluding the person’s representative from being present. Failure to comply with a requirement to tell the inspector who has custody of, or access to, a document, to produce a document or to answer the inspector’s questions, without reasonable excuse, is a maximum penalty of $50,000 for a corporation and $10,000 for an individual.

Inspectors will also have powers to seize any evidence if they reasonably believe there has been a contravention and the seizure is necessary to prevent the evidence being hidden, lost or destroyed, or used to continue or repeat the offence. In the event that an inspector reasonably believes that the workplace, any part of the workplace, any plant, substance or structure is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident may occur, the inspector may seize the workplace or part of the workplace, the plant, substance or structure. This is a significant power. It will be extremely important that following an incident an assessment is made as to whether any workplace or plant is required to be made safe. However, any corrective action taken may be an admission that the workplace or plant was unsafe, and reasonably practicable measures had not been taken to address the specific risks. It should be noted that under the Model Act an inspector will be authorised to take affidavits for any purpose relating to the exercise of his or her compliance powers. We anticipate that inspectors will, moving forward, prefer to document information in affidavit format. It will become imperative for those persons who provide such affidavits that they do not speculate or guess when providing responses. Preparation for interviews with inspectors will be crucial under the Model Act.

Self-incrimination

Consistent with the present position in New South Wales, the common law right against self-incrimination has been abrogated in the Model Act. A person is not excused from answering a question or providing information or documentation on the grounds that the answer to the question, or the information or documentation, may tend to incriminate the person or expose the person to a penalty. For example, the answer to the question what is your position? may incriminate the person as there are personal obligations upon all workers and officers under the Model Act.

Under the Model Act, the answer, information or document provided by an individual is not admissible as evidence against that individual in criminal or civil proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document. However, this is not the case where the information is provided voluntarily by the person.

In practical terms, this means that any person who is compelled by an inspector to produce documents or answer questions will need to ensure that he or she claims the privilege against self-incrimination. Before requiring a person to answer a question, or provide information or documentation, an inspector must identify himself or herself by producing an identity card or in some other way (eg, a business card). The inspector must warn the person that failure to comply with the requirement or to answer the question without reasonable excuse constitutes an offence. The inspector must also warn the person about the effect of the abrogation of privilege against self-incrimination and the fact that the person is not required to disclose or produce information that is the subject of legal professional privilege. Presently, many inspectors take the position that a request for information and documentation is a fact-finding exercise, and any such cautions are not required as the inspector is making no decisions about the guilt or otherwise of the individual. However, without the warning or caution, the information provided by the person is voluntary, and protection against self-incrimination is not available to the person. For abundant caution, under the Model Act every person should ask the inspector to provide the warning, and the person must confirm that he or she wishes to claim the privilege available against self-incrimination. Where the warning has been correctly given by an inspector, any answer, information or document provided by a natural person is not admissible in evidence against that individual in any civil or criminal proceedings. Given the significant increases in penalties under the Model Act, it is crucial that persons do not voluntarily provide information but require the inspector to take the above steps to formally confirm who they are, warn the person of the failure to comply and obtain a warning in relation to the application of privilege against self-incrimination.

Offences relating to inspectors

The Model Act provides for a number of offences relating to inspectors. These include hindering or obstructing an inspector from exercising his or her compliance powers or inducing or attempting to induce any other person to do so (the maximum penalty for a company is $50,000 and $10,000 for an individual). Impersonating an inspector can also make a person liable to a maximum penalty of $10,000. It is also an offence for a person who directly or indirectly assaults, threatens or intimidates, or attempts to assault, threaten or intimidate an inspector or a person assisting an inspector. The maximum penalties are $250,000 for a corporation and $50,000 and/or two years imprisonment for an individual.

Consistent with existing legislation, inspectors will have powers to issue improvement and prohibition notices. Notices will need to be displayed in a prominent place at or near the workplace, or part of the workplace, at which the work is being carried out and that is affected by the notice. Regulators will have the power to apply to appropriate courts for injunctions compelling persons to comply with notices or restraining persons from contravening notices. The bringing of injunctions will be independent of whether or not proceedings have been brought for offences under the Act. Persons will also need to be familiar with the proposed review provisions for notices.

Conclusion

The powers and the approach of inspectors will closely align with the current position in New South Wales. It will be important that persons claim the privilege available against self-incrimination in order to protect themselves. This will mean that compelled statements or affidavits will not be able to be used against the person personally in civil or criminal proceedings. It remains to be seen what approaches the regulators will take in adopting the workplace investigation provisions. These new powers to compel information, documentation and answers to question will no doubt mean more focused attention and reaction to workplace incidents and investigations.

*John Makris is a special counsel in the workplace relations and safety group at Middletons. He provides advice on workplace safety legislative compliance, assists in the investigation of workplace incidents and defends prosecutions commenced by safety regulators for breaches of safety legislation. He represents clients in a range of industries including transport, manufacturing, construction, agriculture, energy and retail.

Middletons

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