Under the model WHS laws, regulators and their inspectors have specific powers to require the production of documents, information and answers to questions.
An inspector has the power to:
- require that a person tell the inspector who has custody of, or access to, a document
- require that a person give documents to the inspector, and
- require a person to answer questions put by the inspector.
Before exercising these powers, an inspector must identify themselves as an inspector and warn the person that failure to comply with the inspector’s request without a reasonable excuse is an offence. The inspector must also warn the person about the abrogation of the privilege against self-incrimination and advise that documents subject to legal professional privilege do not have to be disclosed.
These powers can be used whenever an inspector enters a workplace.
If an inspector requires a document, they must make the request in writing, unless the circumstances require the inspector to have immediate access to the document.
A person being interviewed by an inspector can request the interview be conducted in private. An inspector may also choose to conduct the interview in private if they consider it appropriate. An assistant to an inspector and a representative of the person being interviewed can be present at an interview, including interviews conducted in private.
The regulator can obtain information from any person if they have reasonable grounds to believe the person can give information, documents or evidence that:
- Relate to a possible breach of WHS law
- will assist the regulator to monitor compliance with WHS law, or
- will assist the regulator to enforce WHS law.
Is the regulator limited to only requesting information, documents or evidence in its own state or territory?
No. The regulator in one state or territory can use its powers to request information, documents or evidence from a person in another state or territory.
Is the regulator limited to only requesting documents relating to WHS matters?
No. The regulator does not need to know the contents of documents sought. It is sufficient that the regulator has a reasonable belief the documents will help with investigating a possible breach of WHS laws, or monitoring or enforcing compliance with WHS laws. This means the regulator can request a wide range of documents, for example board minutes, communications and emails.
There are however protections for disclosure of information obtained as well as legally privileged information (see below).
What is the process for requesting documents, information or answers?
To request information, the regulator must issue a written notice. The notice can require a person to:
- provide information in the form of a signed statement
- produce the required documents, or
- appear at a specified time and place to answer questions or provide the required information and documents. The person may attend with a legal practitioner.
The regulator may only require a person to attend an interview in person after they have taken all reasonable steps to obtain the required information by other means.
The written notice should also say that failure to comply with the notice without a reasonable excuse is an offence and explain the effect of legal professional privilege and self-incrimination (see below).
Self-incrimination, legal professional privilege and confidentiality
Self-incrimination: Under the model WHS Act, a person cannot refuse to answer a question or provide information or documents to a regulator or inspector because doing so may incriminate them or expose them to a penalty. However, information and documents obtained by the regulator or an inspector are generally not admissible as evidence in civil or criminal proceedings against the person who provided them.
If you are required to answer a question or provide information or documents, you should check with your regulator about self-incrimination provisions, as some jurisdictions differ from the model WHS Act.
Legal professional privilege: A person does not have to provide information or documents to the regulator or an inspector if the documents or information are subject to legal professional privilege.
Confidentiality: Once the regulator or inspector obtains information or documents, generally, they cannot disclose this information to anyone else. However, the regulator or inspector may disclose information in some circumstances, including where they are required by law or by a court or tribunal, if it is necessary for the exercise of a power or function under WHS laws or with the person’s consent. Regulators can also share information amongst themselves in exercising powers or functions.
SWA is not a regulator and cannot advise you further about compliance and enforcement. If you need help, please contact your state or territory work health and safety regulator.