Australia: A Word Of Advice, On Advice

Are you getting the best advice when it comes to health and safety compliance?

When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).

When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking?

Under the model work health and safety laws in Australia, officers have a positive duty to exercise due diligence. This includes taking reasonable steps to ensure they have the relevant knowledge and understanding, or take the relevant decision or action1. SafeWork Australia's Interpretative Guideline2 provides further guidance to officers on what is meant by taking "reasonable steps" in this context:

'Officers may meet the due diligence requirements in some respects by proper reliance on information from and the activities of others, while having more direct involvement in the health safety management and governance in other aspects. To the extent to which an officer will seek to rely on others, the officer must be able to demonstrate the reasonableness of that reliance, which may be demonstrated through credible information and advice from appropriate people'....

Let's consider a request for advice by Board members who want to know whether or not they are complying with their legal obligation to exercise due diligence. This question is a legal question that should be answered by a legal practitioner. Having this question answered by a legal practitioner also paves the way for them to be able to call upon the appropriate services from internal and/or external subject matter experts pertinent to a particular issue.

Another key issue facing Boards and Senior Executives, is whether the person they are relying on to provide adequate advice, is actually capable of providing it. For example, can a health and safety professional provide legal advice? The general position would be no – not unless the health and safety professional is also a legal practitioner (although there may be circumstances where a person who is not a legal practitioner can provide this type of legal compliance).

That doesn't mean Boards and Senior Executives shouldn't be receiving advice from health and safety professionals and other consultants/experts when it comes to advising on performance, strategy, risks, culture, climate and other non-legal aspects of due diligence. However, Boards should be thinking twice when seeking assurance on the question of legal compliance from anyone other than a legal practitioner.

The sceptics among readers may see this as a way of legal practitioners justifying their existence. And, well, they are certainly entitled to their views. If those same sceptics are going to help their Board and Senior Executives demonstrate the reasonableness of their Boards reliance on credible information from an appropriate person, they will need to be open to a different point-of-view.

Another tip – once you have decided to seek advice from a legal practitioner, ensure that the legal practitioner has the requisite experience and expertise in the field. If the sceptical readers are still reading, no doubt they might be up-in-arms about this additional suggestion. But let's explore the issue further in the interests of getting the best advice available.

In the book Outliers, author Malcolm Gladwell states it takes roughly ten thousand hours of practice to achieve mastery in a field. So, in general terms, the greater the experience and expertise of a legal practitioner, the stronger the basis for the reliance on the legal advice.

A legal practitioner with experience includes a person who has:

'knowledge or practical wisdom gained from what one has observed, encountered or undergone' and an expert is defined to include a person 'who has special skill or knowledge in a particular field'3.

So when you combine experience and expertise, consider asking the following questions before seeking, receiving or accepting, health and safety legal advice:

  1. Is the person providing the advice a legal practitioner?
  2. What position does the legal practitioner hold?
  3. How many years has the legal practitioner held that position?
  4. What is the legal practitioner's field of expertise?
  5. What is the extent of that legal practitioner's expertise?
  6. What level of practical experience does the legal practitioner have in this particular field? (This does not include how many articles, blogs, webinars, but actual practical experience).
  7. What level of experience does this person have in providing this type of legal advice? (For example, has it ever been tested by a Regulator and/or in a Court? And if so, what was the outcome?).
  8. Is there anything else I should know about the person providing the legal advice?

For those of you who provide advice and support to Boards and Senior Executives, it is important to demonstrate insight into whether or not you are best placed to provide that advice. If not, are you sourcing the right person for that particular piece of legal advice? Sometimes pressure on resourcing and/or restructuring can be reasons why we are reluctant to defer to experience and expertise, but this is one critical area where we should resist. Certainly, we are not proposing peddling  the legal risks of getting this wrong, but we're confident that without too much effort, you can work out the personal and legal consequences that may arise.

Whilst constant vigilance and a healthy level of caution are valuable, accessing the right legal expertise might also have broader implications when you are seeking compliance advice generally.

With the right advice (both legal and non-legal) Boards and Senior Executives can have a positive impact on the health and safety of their people and those affected by their actions.

Footnotes

1. Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

2. Interpretive Guidelines – Model Work Health and Safety Act – The Health and Safety Duty of An Officer under Section 27 – Safe Work Australia

3. Macquarie Concise Dictionary, Sixth Edition

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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