Work Health and Safety Incident Investigations in Queensland
Following a work health and safety incident, particularly one involving a serious injury or fatality, inspectors from Workplace Health and Safety Queensland (WHSQ) are highly likely to conduct an investigation at the workplace.
Functions and powers of WHSQ inspectors
WHSQ inspectors are appointed under the Work Health and Safety Act 2011 (WHS Act) to monitor and enforce compliance with the work health and safety legislation.
WHSQ inspectors are given significant powers under the WHS Act, particularly regarding entry to workplaces.
Persons conducting a business or undertaking (PCBU) should be mindful of the following powers and obligations of inspectors.
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Note:
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Workplace Health and Safety inspectors’ general powers of entry |
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Power of entry |
WHSQ inspectors have the general power to enter a workplace at any time, with or without the consent of the person with management or control of the workplace. |
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Notification of entry |
As soon as practicable after entry to a workplace, a WHSQ inspector must take all reasonable steps to notify the PCBU or the person or management or control of the workplace. |
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General powers on entry |
A WHSQ inspector entering a workplace can:
An inspector can also require a person at a workplace to give them reasonable help to do the things listed above. Failing to comply with this requirement, without a reasonable excuse, carries a maximum penalty of a $10,000 fine*. |
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WHSQ inspectors’ specific powers on entry |
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Production of documents and answers to questions |
A WHSQ inspector who enters a workplace (or has entered in the previous 30 days) may:
require a person at the workplace to attend before the Inspector at a stated reasonable time and place to answer questions put by the inspector. |
Interviews with WHSQ inspectors
WHSQ inspectors will initially offer witnesses and duty holders the opportunity to participate in a voluntary interview to answer questions regarding the incident under investigation.
In most scenarios, it is advisable to decline the offer to participate voluntarily. The reason being that nothing prevents the inspector from obtaining and using evidence voluntarily given to them. Any information, admissions or documents voluntarily provided to an inspector can be used in a prosecution of the person who provides the materials.
If a voluntary interview is refused, the inspector can then issue a notice under s 171(1)(c) of the WHS Act compelling the recipient to attend an interview. This means that the right to silence does not exist under the WHS Act, and you cannot refuse to answer questions on the basis of self-incrimination under s 172 of the WHS Act.
Importantly, before requiring a person to produce a document or answer any question under s 171 of the WHS Act, an inspector must warn and inform the person that:
- failure to comply with the requirement to provide a document(s) or to provide answers to questions without reasonable excuse is an offence - it is up to the person to show they have a reasonable excuse not to answer questions;
- they are not excused from answering any question or providing information or a document on the grounds that to do so may tend to incriminate them;
- any information that is self-incriminatory is not admissible as evidence against them in civil or criminal proceedings; and
- they are not required to produce any document that would disclose information that is subject to legal professional privilege.
In practical terms, this means that if you agree to a voluntary interview, any admissions made during that interview can later be used in a prosecution against you. Admissions made during an interview undertaken under compulsion cannot be used against you but can be used to prosecute others under the WHS Act.
Seek legal advice before participating in an interview with a WHSQ inspector
Whether you are considering undertaking a voluntary or compulsory interview, it is advisable to seek legal advice before making that decision. You should seek advice if you are served with a notice to ensure that your rights are protected during the interview process. You are entitled to have a lawyer (or support person) attend the interview with you.
Interviews are recorded and transcribed. If a prosecution ultimately occurs, the transcript will form part of the prosecution brief of evidence. If the matter proceeds to trial, you may eventually be required to give evidence and be cross-examined based on the content of your interview.
It is an offence under the WHS Act to knowingly provide false or misleading information, which includes during a compulsory interview. The maximum penalty for this offence is a fine of $10,000*.
Power of WHS regulator to obtain information
It is common for WHSQ to issue notices under s155 of the WHS Act in the early stages of an investigation. These notices are issued when the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of the WHS Act.
Unlike other notices issued under the WHS Act, a notice under s 155 of the WHS Act cannot be reviewed, internally or externally, with respect to its validity. This means that a response is compulsory.
Notices issued under s 155 of the WHS Act are often broad in scope and require the recipient to provide written responses to questions in addition to supplying a wide array of WHS documents. It is important to note the specific recipient of the notice – the notice cannot be issued at large. Additionally, a s 155 notice relates to documents that are in existence. It is a reasonable excuse not to produce the documents if they do not exist or are inaccessible.
Upon receipt of a s 155 notice, it is highly recommended that you obtain legal advice before submitting a response to WHSQ. A risk exists if you do not obtain legal advice that you could provide information and documents that go beyond what you are actually required to submit.
Section 172 of the WHS Act also applies to a notice under s 155. This means that the answer to a question or information or a document provided by an individual, and other evidence directly or indirectly derived from the answer, information or document, is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer, information or document. The materials and information can, however, be used to prosecute other persons.
The materials provided in response to a s155 notice will ultimately be included in a brief of evidence if a WHS prosecution occurs.
How can an experienced WHS lawyer assist?
Gilshenan & Luton are specialist criminal defence and WHS lawyers experienced in WHS investigations. We have significant experience assisting clients during the investigation process, which includes communicating with inspectors and WHSQ, attending interviews and drafting responses to notices under s 155 of the WHS Act.
We ensure that our clients’ rights are protected throughout the investigation with clear and frequent advice provided regarding the conduct of the investigation. We also provide internal investigations to assist clients seeking advice on incident causation and legal analysis of potential breaches under the WHS Act.
* Penalties current as at August 2023
Contact Gilshenan & Luton
Work Health & Safety Lawyers Brisbane