The Australian Law Reform Commission's (ALRC) recently released interim report has called into question the suitability of provisions under the Work Health and Safety Act 2011 (Cth) (WHS Act), such as the provision excluding the right to silence and the provisions reversing the legal burden of proof. The report was produced in response to Attorney-General George Brandis' direction to identify and examine Commonwealth laws that encroach upon traditional or common law rights, freedoms and privileges.

The ALRC is now calling for submissions from organisations with a special interest in any of the identified areas, as well as from the broader community.

Privilege against self-incrimination

Section 172 of the WHS Act provides that a person is not excused from answering a question or providing information or a document because it may potentially incriminate or expose the person to a penalty. By way of a safeguard, the legislation makes any such statement inadmissible in civil or criminal proceedings against the individual providing the information. Concerns have been raised about whether this immunity appropriately protects an individual's rights and the ALRC is seeking comments on whether further review of this provision is necessary.

Burden of proof

In the normal course of events, a prosecutor alleging that a criminal offence has been committed has the burden of proving the offence and, by extension, the culpability of the accused. The WHS Act currently contains provisions reversing this onus.

For example, s 104 of the WHS Act makes it an offence to engage in discriminatory conduct against a person for a prohibited reason.  Section 110 of the WHS Act reverses the onus of proof onto the accused in such a circumstance by presuming that the dominant reason for the accused's conduct was a prohibited one. It is then up to the accused to show the dominant reason for their conduct was not a prohibited one. The ALRC is considering that a review of the reversals of the legal burden of proof may also be warranted.

The impact

The interim report has called for public submissions to be made about a number of provisions including provisions regarding the two issues above. The public submissions received will be considered by the ALRC and may prompt further review of the provisions themselves before the final paper is presented to the Attorney General in December 2015.

The review may result in the removal or amendment of the provisions and could, potentially, result in an expansion of the privilege against self-incrimination and/or removal of the reverse onus of proof.

The expansion of the privilege against self-incrimination may significantly affect the information individuals will be compelled to provide to the regulator in WHS investigations.

The removal of a reverse onus of proof will mean the prosecutor will need to prove the accused's guilt, as opposed to the accused proving their innocence.

Although the review is occurring at a Commonwealth level, any legislative changes undertaken have the potential to trickle down into state and territory legislation.

Call for submissions

The ALRC is seeking submissions from organisations with a special interest in any of the identified areas as well as from the broader community. The closing date for submissions is Monday 21 September 2015.