From 1 January 2014 officers of corporations in Queensland have new electrical safety due diligence obligations, and businesses must be able to demonstrate compliance.
The Electrical Safety Act 2002 (Qld) has long required the control of electrical risks in most Queensland workplaces1 and imposed criminal sanctions for breach. However from 1 January 2014 it has been amended to match the harmonised general work health and safety laws. It has also been supplemented by the new Electrical Safety Regulation 2013. There are some subtle and not-so-subtle changes that you should be aware of.
Officers' due diligence for electrical risk
For the first time in Queensland, officers of corporations have positive due diligence obligations for electrical risk.
The removal of the previous deemed liability provisions has been welcomed, but officers must now be prepared to demonstrate that they have met their personal duties, including taking reasonable steps to verify corporate compliance.
Many officers reviewed and implemented safety governance programs in early 2012 when the harmonised general work health and safety laws were introduced, but might not have expressly incorporated electrical safety as part of their program. They must now do so.
Managing electrical risk – and proving it
The laws now expressly require that businesses implement a risk management approach, including selection of controls that reduce electrical risks in accordance with the hierarchy of controls and "so far as is reasonably practicable".
In some cases documentation of risk assessments and safe work method statements are now mandatory (such as for live work).
Businesses must be able to demonstrate that the defined process has been applied and that the risk controls they have in place have been selected according to the defined standard. Cost is one factor – but this can only be considered once the extent of the risk and available controls have been assessed. Further, there are express obligations to review control measures regularly and when risk profiles change.
In practice many businesses currently may not make or retain adequate evidence to demonstrate compliance to these standards
Consequences for non-compliance with the Electrical Safety Act
The stakes for non-compliance are very high. Reckless offences can be crimes and will be prosecuted through the higher courts (rather than the magistrates courts as is currently the case).
There are penalties of up to $3m for a corporation or $600,000 or five years' imprisonment for individuals, and a range of new penalties available such as adverse publicity orders.
Prosecution under these laws can therefore have significant personal, financial and reputational consequences.
The powers of inspectors have been enhanced so that persons can no longer refuse to answer questions or provide information on the basis that they may incriminate themselves.
There are derivative use limitations which restrict the use of the answer or information given – but these only apply in limited circumstances and ultimately may not protect individuals who can be forced to formally make admissions which would tend to evidence a breach.
Businesses need to ensure individuals are skilled in handling inspectorate interviews to limit inadvertent incriminating admissions.
Requests to prosecute
Third parties can make written requests to the regulator for a prosecution to be brought. If the regulator decides not to prosecute, a referral can be made to the Director of Public Prosecutions.
Businesses will need to make sure their stakeholder liaison processes are operating effectively to limit unplanned interventions.
Legal professional privilege and safety and health issues
The new laws confirm that they do not interrupt the operation of legal professional privilege. This means that businesses can still confidentially communicate with their legal advisors about safety and health issues where they are seeking advice or preparing for anticipated litigation.
The recent court decision in Matthews v SPI Electricity Pty Ltd  VSC 422 demonstrates that courts will uphold legal professional privilege in relation to electrical safety advice where the privilege is legitimately claimed.
The management challenge
The management of electrical risks in Queensland business has been dramatically impacted by these legislative changes. Although there has been limited modification to many technical requirements2 the challenge will be to systematically demonstrate compliance – and the consequences for failure will be high.
Personal exposure for individuals is a key plank of the enforcement regime, and in this light managers – even those with limited understanding of technical electrical risk – will have to step up to drive effective operational control.
Clayton Utz safety lawyers have extensive experience in electrical safety law across all Australian jurisdictions. We can assist in reviewing electrical safety governance and management systems, advising on improvement strategies, emergency response and delivering legal skills workshops for executives and frontline managers.
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1The Act has a modified operation in relation
to mining and petroleum and rail workplaces.
2With some exceptions, such as modifications of applicable Australian Standards for high voltage live line work
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.