Two regulatory powers of compulsion to answer questions
contained within the Work Health & Safety Act, were discussed
at the SIA Sydney Safety Conference, namely, Sections 171 and 172
of the model Work Health & Safety Act. Section 172 provides
that an inspector who enters a workplace, may require a person to
produce documents or answer any questions put by the inspector, and
Section 172, provides that the person is not excused from answering
a question or providing information or a document.
Section 172(2) has the effect that none of those answers or
documents are admissible in evidence in Civil or Criminal
Proceedings against the person making them, however, the
information can be used as evidence in prosecuting other workers
and the business.
These rules to compel responses could arguably offend the rule
of law in be moving the right to silence. Moreover, they could
potentially be perceived as counterintuitive to safety, because
they effectively cast a shadow on no blame enquires. This makes the
two functions that the inspectors' serve mutually exclusive.
They conduct no blame enquiries and also enquiries to apportion
It is sometimes difficult to know when inspectors are searching
for facts or preparing a prosecution. It is hard for employers to
know whether to obtain the advice of a lawyer, or whether to share
information that will be used to improve safety.
Inspectors often conduct interviews and print the responses on
documents entitled "Statement" and seek for workers that
are involved in the investigation to sign it on the spot. However,
such documents, should not be signed, until they are reviewed by
legal advisors. Unfortunately, it is possible that inaccurate or
misconstrued information could be conveyed, leading to unfortunate
consequences to prosecute the business or other workers. Should
your business face such a situation, we urge you to seek a review
from your legal advisors first.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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