Two regulatory powers of compulsion to answer questions contained within the Work Health & Safety Act, were discussed at the SIA Sydney Safety Conference, namely, Sections 171 and 172 of the model Work Health & Safety Act. Section 172 provides that an inspector who enters a workplace, may require a person to produce documents or answer any questions put by the inspector, and Section 172, provides that the person is not excused from answering a question or providing information or a document.

Section 172(2) has the effect that none of those answers or documents are admissible in evidence in Civil or Criminal Proceedings against the person making them, however, the information can be used as evidence in prosecuting other workers and the business.

These rules to compel responses could arguably offend the rule of law in be moving the right to silence. Moreover, they could potentially be perceived as counterintuitive to safety, because they effectively cast a shadow on no blame enquires. This makes the two functions that the inspectors’ serve mutually exclusive. They conduct no blame enquiries and also enquiries to apportion blame.

It is sometimes difficult to know when inspectors are searching for facts or preparing a prosecution. It is hard for employers to know whether to obtain the advice of a lawyer, or whether to share information that will be used to improve safety.

Inspectors often conduct interviews and print the responses on documents entitled “Statement” and seek for workers that are involved in the investigation to sign it on the spot. However, such documents, should not be signed, until they are reviewed by legal advisors. Unfortunately, it is possible that inaccurate or misconstrued information could be conveyed, leading to unfortunate consequences to prosecute the business or other workers. Should your business face such a situation, we urge you to seek a review from your legal advisors first.