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Flaws in WHS Act coercive powers: reform needed

workplaceohs.com.au /whs- ohs-legislation/model-act- and-regulation/f laws- in-whs-act-coercive-powers-reform-needed

 Author Mike Toten 17 Sep 2013

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There are serious problems with investigations under the federal Work Health and Safety Act 2011, and amendments

to the Act’s coercive powers (combined with better training o f workplace inspectors) are needed, the 2013 Safety in

 Action conference (held in Sydney by Informa on 4 September 2013) was told.

Not the fault of regulators or inspectors

Siobhan Flores-Walsh, Partner at the law firm Norton Rose Fulbright, emphasised that the current problems were

caused by flaws in the legislation and insufficient training of inspectors, not by the regulators o r inspectors

themselves, who were trying to cope with conflicting roles and inadequate resources for the job.

 

Having to serve two masters

 

Flores-Walsh said that both WHS and the organisation’s and employees’ rights are compromised by inspectors

having to serve two masters:

1. prevention, which emphasises ‘no blame’ enquiries

2. prosecution, which requires blame to be apportioned.

The coercive information-gathering powers of regulators and inspectors also hamper the effectiveness of 

investigations because:

the powers exceed those of mainstream police powers

they can require the production of materials that can always be used in prosecutions

criminal penalties apply to breaches, which scares duty-holders

investigators who have insufficient training may inadvertently ‘expand’ the scope of their powers.

 A ossible solution is a two- stream rocess that clearl se arates the reventive and rosecution functions, but it

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might make the process too costly and lead to WHS and individual rights being compromised. A compromise

approach could be to adopt the Best Practice Principles of the Administrative Law Review Council (ALRC), which

would at least partially protect individuals’ rights.

Scope of coercive powers ‘extraordinary’

Flores-Walsh said that regulators and inspectors could use the Act’s coercive powers to obtain information that

would be inaccessible via traditional policing methods. The coercive powers have become inadvertently much

greater than intended because:

they threaten the basic Rule of Law

they abrogate the right to silence, even though the Act is a criminal statute and breaches can lead to

imprisonment and criminal records

they also abrogate the right against self-incrimination.

In practice, this situation creates an incentive for the parties to take the most cautious approach and ‘lawyer up’ in

order to p rotect themselves, which makes it much harder to obtain meaningful information from people. An

investigator has to start by obtaining basic facts about a WHS incident, then assess whether the investigation might

be moving towards a prosecution, then make further enquiries with a view to p rosecution. By the third stage, duty-

holders have sought legal advice and are reluctant to provide further information.

Source of coercive powers

Powers to be exercised inside a workplace are prescribed by s171 of the Act and powers to be exercised outside a

workplace by s155.

Section 171 gives inspectors the power to ask a person to answer any question or provide any document, and the

person must do so unless he/she has a reasonable excuse. Section 155 requires a person to provide written

answers to written questions issued by a regulator or inspector and to attend an interview to clarify any written

answers, unless the person has a reasonable excuse.

Flores-Walsh said that several problems can arise from these powers:

Some inspectors provide detailed explanatory statements about the powers under s171 and ask the

duty-holder for a signed acknowledgement that he/she understands them.Some assert that they have a right to film or record interviews and use a ‘chain of evidence’ approach

to recording. This can be intimidating and exceeds the powers of the Act, which do not provide a power 

to compel filming or recording.

Some conduct interviews by themselves, asking questions and typing the responses as the interview

progresses, then asking the duty-holder to read and sign the statement at the end of the interview. The

effect of this is that the duty- holder doesn’t receive sufficient time to review the statement. He/she should

ask for time to review it, but it appears that many lawyers are advising them not to sign such statements

anyway.

The result often is that interviews are pre- scheduled, with the parties warned in advance who will be

interviewed, but regulators and inspectors do not actually have the power to do this.

 A common first question is: ‘Would you prefer to give the information voluntarily? ’ — but duty- holders

gain the immunity privilege only if they answer questions under compulsion.

Section 155 allows duty- holders to seek lega l advice first; but, in practice, this o ften does not occur. A practical

drawback of the powers is that they take too long to produce meaningful information.

 A general criticism is that the coercive powers are creating practices that unintentionally extend the powers, and in

an unsupervised way. Because WHS law is a criminal jurisdiction, this issue has very serious implications.

Possible solutions?

Flores-Walsh recommended that the Act’s coercive powers comply with the ALRC Best Practice Principles (see

above), in particular Principles 2 (actions before using powers), 3 (transparency in exercising powers), 7 (only

senior and experienced staff should use the powers), 8 (only trained and accredited staff should use them) and 17

(exercise of privilege). She said that Principles 7 and 8 were the most important of all.

It should be made clear to duty-holders that if they g ive information voluntarily, the immunity protection does not

http://www.arc.ag.gov.au/Publications/Reports/Pages/Reportfiles/ReportNo48.aspxhttp://www.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s155.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s171.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s155.htmlhttp://www.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/s171.htmlhttp://www.arc.ag.gov.au/Publications/Reports/Pages/Reportfiles/ReportNo48.aspx

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apply. Similarly, they should be made aware that interviews cannot be pre-scheduled and forced on them.

 

Flores-Walsh warned that if nothing is done to curb the unintended expansion of the coercive powers, the

consequences would include reduced protection for people within a criminal context and some flawed decisions to

prosecute.

Given that the single stream system serving two masters (see discussion above) is likely to continue, adoption of the

 ALRC Principles was the most practica l and realistic potential solution. Flores- Walsh contrasted the situation of WHS

Inspectors with that of police officers, who receive better training and resources and tend to know their rights and

powers very well.

Further information

More information about the Safety in Action conference is available from Informa.

 

To contact the presenter: email Flores-Walsh.

Flores-Walsh is also running a workshop on the coercive powers and dealing with WHS Inspectors.

Mike Toten

Mike Toten is an HR Consultant who specia lises in research and writing aboutHR best practices, industrial relations, equal employment opportunity and relatedareas. He has been a regular contributor to Workplace Info for a number of years.more from Mike

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