WHS Regulators have very broad coercive information gathering powers

In Perilya Limited v Nash [2015] NSWSC 706, the Supreme Court of NSW confirmed the extensivescope of the WHS Regulators’ coercive information gathering powers in terms of their scope of content, geography and timeframes, as well as their capacity to reach into the Boardroom (parent companies take note!).

In short, Regulators can obtain, on A mandatory basis, information that:

  • is held in another Australian jurisdiction;
  • does not relate to safety;
  • pre-dates a relevant incident; and
  • is created for Board use (including that of a parent company, rather than the subsidiary operating the business in which the relevant incident occurred).

What happened?

Perilya Broken Hill Ltd (PBHL) operated a mine at Broken Hill NSW where an employee suffered serious injuries when he fell 14 metres down a shaft in June 2012. The NSW Department of Trade and Investment investigated and in May 2013 an inspector directed PBHL's holding company – Western Australia-based Perilya Ltd (Perilya) – to provide him with:

  • the minutes from all Board meetings convened between May 2008 and December 2012 - the request was not confined to minutes that dealt with safety; and
  • copies of all documents produced between May 2008 and December 2012 for the purpose of advising its directors on safety matters at the Broken Hill Mine.

Perilya provided edited versions of the relevant documents, and then refused two statutory requests to provide un-redacted copies, claiming the omitted material was commercially sensitive and confidential information.

Perilya’s Argument and the Supreme Court’s Finding

Perilya argued:

  • The jurisdictional issue - the notices demanding the information were invalid because the inspector's power to compel the production was limited to documents or matters that arise in or are related to NSW. As Perilya’s head office was in Perth, it could not be the valid subject of a notice.
    • The Supreme Court found - The regulator's power to obtain information under the model WHS Act isn't blocked by state borders.
  • The subject matter issue – the information sought must be limited to ‘safety’ issues.
    • The Supreme Court found -The regulator's power is not limited to documents that specifically refer to safety matters - the absence of safety information in documents may prove that a WHS duty has been breached.
  • The time frame issue – documents created between 2008 and late 2011 could not be relevant to determining compliance at the time of the incident in June 2012.
    • The Supreme Court found - Information relevant to safety at the Broken Hill mine held by the holding company of PBHL was within the coercive powers conferred upon the regulator under s155 to acquire 'information' and inspectors had broad powers and could request any documents or other evidence that helped them monitor or enforce compliance with the WHS Act.
  • TheBoard room issue - information held by the holding company relating to the relevant period was not relevant to the June 2012 incident.
    • The Supreme Court found: Holding companies can hold information relevant to breaches at operations conducted by their operating companies and accordingly the notice was valid in that regard.

Other key issues about coercive information gathering powers

  • These powers are "controversial and extraordinary", and exceed police powers in some jurisdictions. This means in-house counsel should be consulted before inspectors are allowed to exercise these powers at your workplace.
  • WHS duty holders should understand how these powers work –duty holders regularly:
    • misunderstand their rights and hand over information that is not required
    • participate in ‘voluntary’ interviews thereby not engaging their abrogated immunity against self-incrimination
    • do not fully appreciate that whenever they give information to an inspector, it can be used against them for the reasons discussed below - so care should be taken.
  • WHS Inspectors in the harmonised jurisdictions are now working under a system "in which they must serve two masters", they are:
    • no-blame inquiries, which generally happen immediately after a safety incident; and
    • inquiries to apportion blame, which usually occur later in an investigation.
  • It can be unclear which stage of the investigation continuum the inspector is up to ("Are they after facts, or putting together a prosecution brief?"). This makes it difficult to know when to "lawyer up".
  • Think twice before:
    • agreeing to be filmed or audio recorded during a WHS interview – notwithstanding pressure to do so; or
    • signing any ‘statement’ or other similar document; there is no legal obligation to sign a statement – at the very least, ensure the document has been comprehensively reviewed and ideally, legal advice taken about it. Statements signed in haste often contain inaccurate information that can be relied upon to support an "unmeritorious" decision to prosecute duty holders.