You should specifically consider the regulator's power when creating board minutes and papers about safety incidents and responses to accidents
The WHS regulator has power to require production of documents when investigating a contravention, or in enforcing and monitoring compliance with, the harmonised work health and safety legislation – but how far does it go?
The NSW Supreme Court recently clarified that this is a broad, information-gathering, coercive power, and can even extend to documents which do not refer to health and safety at the relevant workplace, documents created prior to the current Act, and documents held interstate (Perilya Limited v Nash  NSWSC 706).
The mine accident and the regulator's investigation
In 2012, a worker employed by Perilya Broken Hill Limited was seriously injured when he fell 14 metres down a mine shaft.
As part of the investigation, the regulator issued Notices to Produce Documents under section 155 of the Work Health and Safety Act 2011 (NSW) to Perilya Limited, the mine's holding company. One of the notices required Perilya to produce:
- minutes of all meetings of the Board convened between 2008 and 2012; and
- all documents produced for the purpose of advising the Board on matters relating to safety performance at the mine in the period from 2008 to 2012.
This timeframe was selected because the regulator considered the 2012 incident had similarities to an accident at the mine in 2008.
Perilya produced heavily redacted documents, on the basis that the documents contained commercially sensitive and confidential information. When the regulator issued two further notices requiring production of unredacted copies of the documents, Perilya refused to produce the documents.
Perilya was charged with two counts of failing to comply with a notice issued under section 155 of the WHS Act, and fined $20,000 for each offence, together with costs of $74,281.
Competing views of the WHS regulator's powers
Perilya argued that the regulator could not require or request production of the unredacted documents, because:
- there was no due diligence requirement 1 in the predecessor legislation that applied at the time the documents were created, and therefore the documents were not relevant when determining compliance with the due diligence requirement under the current WHS Act; and
- the power of the regulator to require production of documents under the WHS Act must be read subject to limitations, including that the documents are "health and safety documents in or related to New South Wales".
The regulator argued that there are only two preconditions to be met for the issue of a notice under section 155 of the WHS Act, which had both been satisfied:
- the person issuing the notice must be the regulator; and
- the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of the WHS Act or that will assist the regulator to monitor or enforce compliance with the WHS Act.
The WHS regulator's powers are broad
In dismissing Perilya's appeals and accepting the submissions of the regulator, the Supreme Court stated the regulator's powers to require production of documents under the WHS Act are:
- "broad, information-gathering coercive powers", which are enlivened when the regulator holds the reasonable belief that the person to whom the notice is directed can provide documents or information which relate to a possible contravention of the WHS Act, or that will assist in monitoring and enforcing compliance with the WHS Act;
- without territorial limitations – that is, the fact that Perilya had operations in other jurisdictions, and had its office in Perth, did not limit the notices issued or documents required to be produced; and
- can extend to requiring production of documents that contain no reference to health and safety, or which does not establish an affirmative fact, eg. a document may omit references to health and safety, or show that inadequate or no remedial action was taken following a safety incident.
The person who is the subject of a notice to produce does not have an unrestricted right to determine for themselves whether a document has a connection, or a sufficient connection, with a matter under investigation or that it is commercially sensitive and should not be produced. The protections offered under the WHS Act in respect of commercially sensitive and legally privileged information 2 are strong indications against any such right.
How employers should create and handle documents when there's a WHS incident
Although this decision concerned the NSW Act, it clarifies the regulator's powers to require production of documents under the harmonised work health and safety legislation, which applies in the Commonwealth, ACT, NSW, Northern Territory, Queensland, South Australia, and Tasmania.
While the harmonised legislation has not yet been introduced in Victoria or Western Australia, the safety legislation in both States similarly provides a regulator with power to require production of documents.
As a result, employers need to be aware of the broad and wide-reaching power of regulators to require production of documents under the WHS Act.
Employers should ensure that compliance with the WHS Act is a priority within the employer's organisation and that the steps taken to consider safety and ensure compliance are appropriately documented, particularly at Board level.
You should also specifically consider the regulator's power when creating board minutes and papers about safety incidents and responses to accidents, as they can potentially prejudice the company both now and in relation to future accidents. Sensitive and potentially prejudicial material should be produced and considered within a framework so that you can claim legal professional privilege.
While broad, the regulator's powers are not unlimited, so if you are served with a notice to produce you should seek immediate advice about your obligations to comply, the relevance of the documents sought, and the critical issue of legal professional privilege.
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1 The model work health and safety legislation
introduced the concept of "due diligence", which requires
that officers of a person conducting a business or undertaking
(PCBU) exercise due diligence to ensure that the PCBU meets its
health and safety duties.
2Section 269 of the WHS Act provides that a person is not required to produce a document that is subject to legal professional privilege. Section 271 of the Act provides safeguards against the disclosure of documents or information that contains confidential information, which are required to be produced under the WHS Act. For example, a person who gains access to a document by exercising powers under the WHS Act is prohibited from disclosing the information in the document to anyone.
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.