Australia: Safety notices: Is the safety regulator required to show his hand?

Last Updated: 26 July 2018
Article by Ashleigh Mills

Most Read Contributor in Australia, September 2018

An employer who chose not to comply with a Notice to Produce document issued by a safety regulator in Victoria has lost their final appeal to overturn a $25,000 fine. In a recent decision handed down by the Victorian Court of Appeal, the Court rejected the employer's argument that the statutory notice it was issued pursuant to section 9(1) of the Occupational Health and Safety Act 2004 (Vic) (the Act) was invalid, with the Court finding that the Notice did not need to specify the provision or provisions of the Act that the employer was suspected of having breached.


In that case, the subject notice had sought information and production of documents from the applicants in respect of a road accident which had ultimately resulted in an employee being seriously injured and made paraplegic. The request was being made for the purpose of investigating a suspected (though undisclosed) contravention of the Act in relation to that accident. As a precursor to the request for information and documents, the Victorian WorkCover Authority (the Authority) had provided the following details to the applicants:

"The Victorian WorkCover Authority is conducting an investigation arising from a workplace incident that occurred on Bulla Road, Bulla, Victoria on 5 December 2011. In that incident [the driver] sustained serious injuries when the Kenworth (2008) T350 Concrete Agitator he was operating failed to brake (the Incident)" (Notice).

The applicants argued that the Notice was invalid because, amongst other things, it did not disclose the provision or provisions of the Act that the applicants were 'suspected' of having contravened, and in respect of which they were being required to provide information and produce documents. They argued that in the absence of sufficient clarity and detail, the applicants were effectively being asked to 'self-incriminate' themselves in circumstances where they could face both prosecution and, potentially, a significant fine. The applicants argued that the detail provided in the Notice was insufficient to enable them to make a proper assessment as to whether they were in fact obliged to comply with the Notice.

In response, the Authority countered that the Notice was issued validly and in accordance with the requirements of section 9 of the Act. The Authority pointed out that section 9 did not contain any express requirement that the particular provision that was suspected of being contravened be specified, nor did it contain any other requirement as to the content to be included in the Notice. This, the Authority noted, could be distinguished from other sections of the Act including, for example, section 111.

In addition, and contrary to the argument as put by the applicants, the Authority's position was that the Notice did contain facts sufficient to establish the Authority's entitlement to issue the Notice, and to validly require the information and/or documents from the applicants. In particular they noted that the Notice had identified:

  • that there had been a 'workplace incident'
  • where the incident had occurred and when (i.e. Bulla Road, Bulla, Victoria on 5 December 2011)
  • the consequence of the incident (i.e. that the driver had sustained serious injuries)
  • how, in the immediate sense, those injuries had occurred (namely, that the brakes of the Kenworth (2008) T350 Concrete Agitator he was operating had failed to brake).

Accordingly, the Authority's position was that the Notice had been validly issued and that the applicants were therefore legally required to comply with the Notice.


At first instance, the employer was fined $25,000 and ordered to pay costs of $15,943 for failing to comply with the Notice. The employer then unsuccessfully appealed to a single judge in the Supreme Court where the court held it did not have a reasonable excuse for failing to comply with the Notice. Finally, the Court of Appeal rejected the employer's last avenue of appeal and found in favour of the Authority by finding the Notice was valid.

The Court held that despite being 'economic' in the level of detail it had provided to the applicants, the fact that the Authority had:

  • identified the Incident being investigated
  • had disclosed how it considered the incident to have been caused, being the failure of the truck to brake when it ought to have

meant that sufficient detail had been provided to indicate the basis upon which the Notice had been issued, and that the Notice was valid.

In reaching that conclusion, the Court made the point that if the Notice had of specified the particular provision that was suspected of having been contravened by the Applicants (as the company had sought) this would have added little, if anything, to the information already conveyed in the Notice. Relevantly, that provision was section 21(1) of the Act which broadly required the employer, so far as is reasonably practicable to 'provide and maintain a working environment for its employees that is safe and without risks to health'. The Court found that such a specification was neither necessary, nor required by the express words of section 9(1).

Lessons for employers

  • in the absence of any ambiguity, the meaning of a statutory provision will be its 'ordinary meaning' and the validity of any notice 'should not be addressed in an 'over-technical or hyper-critical manner'
  • in the case of section 9(1) of the Act the Authority is not required to identify with any specificity, or at all, the particular section of the Act that a company or individual is 'suspected' to have contravened
  • however, the Authority must still provide enough detail to enable the recipient to identify what, in general terms, the 'suspected contravention' is. This is something that may be achieved by identifying relevant, albeit 'economical', facts
  • if you do receive a notice and have concerns in respect to its validity, take action. Always ensure that a response is provided to the Authority within the timeframe specified in the notice and consider your appeal rights.

Application outside of Victoria

Finally, while this case does relate to a provision of the Victorian OHS Act, it is also relevant to employers operating in harmonised work health and safety jurisdictions across Australia. By way of example, section 155 of the Work Health and Safety Act 2011 (NSW) (being the analogous provision to section 9(1) of the OHS Act) allows a regulator to issue a notice where they have 'reasonable grounds to believe' that a person is capable of providing information and/or documents in relation to a 'possible contravention of the Act'. There is no express requirement in section 155 for the possible contravention to be identified by reference to the specific provision or provisions of the Act.

A copy of the decision can be found here.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions