The document summarizes a presentation on the coercive powers granted to inspectors under work health and safety legislation. It notes that inspectors currently serve two conflicting purposes - facilitating no-blame investigations for prevention, and apportioning blame investigations for prosecution. This compromises safety and individual rights. The presentation argues that the coercive powers exceed those of police and produce materials that can be used for prosecution. It recommends creating separate investigation streams for no-blame and blame investigations to better protect safety and rights. However, funding two systems is unrealistic, so rights will continue to be compromised unless best practice principles are followed.

1. Coercive powers under the model Work Health
and Safety Act – time for an overhaul?
Safety in Action 2013 (Sydney Safety Conference)
Siobhan Flores-Walsh
Partner
Norton Rose Fulbright Australia
4 September 2013

2. What is wrong with the Model WHS Investigation System?
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WHS Inspectors (through no fault of their own) serve 2 masters during investigations,
compromising safety & individual rights.
The 2 masters are:
• Better safety outcomes through ‘no blame enquiries’ – preventive
• Better safety outcomes though ‘apportion blame enquiries’ –prosecution.
Regulators & Inspectors are hampered by coercive information gathering powers
• Controversial & extraordinary – exceeding mainstream Police powers
• Produce materials that can always be used in prosecutions.
• Alarm duty holders because criminal penalties apply for breach.
• Are inadvertently ‘expanded’ upon by those not given insufficient training
Solution? - Create a 2 stream investigation process that facilitates ‘no blame investigations’
and ‘apportion blame investigations’.
Reality? – We don’t want to fund a 2 stream system:
• so safety will not be maximized & individual rights will be compromised; &
• although individual rights can be partially protected via adoption of the Best Practice Principles of the Administrative
Law Review Council

3. The coercive information gathering powers
are extraordinary
• Important administrative & regulatory
devices for governments (the Administrative
Review Council 2008)
• Authority or power that is dependent on
fear, suppression of free will or use of
punishment or threat, for its existence
(Macquarie Dictionary).
Depending your view,
they are either:
• “They certainly give very substantial rights to the task
force, arguably rights far greater than police have, so
you have the bizarre situation where building union
officials and employees in the construction industry
actually have fewer rights in relation to investigation by
the task force than a criminal might have in relation to
investigation by police”.
Senator Penny Wong ABCC legislation 2005
WHS Regulators &
Inspectors use
coercive powers to
obtain information that
cannot be accessed
through traditional
policing methods.
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4. Why are the coercive powers so significant?
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Threatens the Rule of Law:
• “….all state officials, whether elected or non-elected,
should act within the law and the constitution, on the basis
of powers that are legally circumscribed”
The loss of the right to silence even though:
• the WHS Laws are criminal laws; and
• breach can attract gaol, significant fines and criminal
records.
An abrogated right against self-incrimination
The risk of significant penalty for non-compliance

5. The WHS Coercive Powers – conceptually
• There can be little justification for
abrogation of the privilege against
self incrimination in the context of
an ordinary workplace investigation
(c.f. emergency situation).
The Law Council
said of the WHS
Coercive powers
• There is a growing “practice” to
support it.
But – we are
seeing an
“extension” of the
formally granted
coercive powers:
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6. The problem with the coercive powers in practice
Question – From where on the investigation continuum is the Inspector
operating?
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Getting basic incident facts Enquiries with a view to
prosecution
Assessing to determine
if moving to prosecution or not
Duty holders are confused when dealing with Inspectors
Lawyer Up
Reduced Information
Compromised Safety
Outcomes

7. Key1 Coercive Information Gathering Powers
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• Trigger: Inspector enters a workplace.
• Power:
• Ask a person to answer any question or
provide any document
• Person must answer any question or
provide any document2 unless a reasonable
excuse.
Coercive
Powers to be
exercised inside
a workplace –
section 171
• Trigger
• Reasonable grounds the person (Subject) can give information to
assist resolve possible breach or monitor/enforce the WHS Act.
• Power 1
• Issue written questions to the Subject
• Subject must provide written answers.
• Power 2
• Require the Subject to attend interview to clarify written answers
• Subject must attend & answer, unless a “reasonable excuse”.
Coercive
Powers to be
exercised
outside a
workplace –
section 155
1. There are other coercive powers
2. You can insist on a written request being provided and documents can be provided later

8. Further Problems with the Use of Section 171
Some Model Act Inspectors:
Provide detailed explanatory documents about section
171 and the mandatory warning and ask for a signature
acknowledging the duty holder’s understanding
Assert a right to film & audio record interviews and then seek to use a chain
of evidence “approach” to the recording
• Intimidating and not part of the coercive powers
Conduct interviews solo – questioning and simultaneously
typing ‘statements’ and then:
• Tell the duty holder to read and sign the statement – raising a range of issues
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9. 9
Responses to objections about some of the Regulator’s
Approach to section 171 and section 155 powers
• Inconsistent & confusing for duty holders
who have operations across
jurisdictions.
Practices vary across
the jurisdictions
• s.155 powers take too long too produce
information
• We are seeking early stage investigation
information
Regulators’ and
Inspectors’
responses to
objections include:
• WHS is a criminal jurisdiction, with coercive powers
& practices that are unintentionally being extended
in an unsupervised way.
• Panel recommendations for powers to obtain
information for investigation (no blame) and powers
for prosecution (blame) were rejected.
The problem – it’s
unrealistic to be
relaxed about the use
of coercive powers:

10. What were (& should be in the future) our expectations about the use
of the WHS coercive information gathering powers?
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The application of the 20 Best Practice Principles of
the Administrative Law Review Council
• Principle 2 – Actions before using the powers
• Consider alternate approaches first that are transparent about their
outcomes
• Principle 3 – Transparency
• About how the powers will be exercised
• Principle 7 – “Authorisation & delegation”
• Senior and experienced staff should be allowed to use powers
• Principle 8 – Training
• Only trained and accredited staff should be allowed to use power
• Principle 17 – Privilege
• Existence of privilege & the circumstances in which it can be
invoked must be clear
In particular the systematic use of the following
principles:

11. 1
Concluding Comments
In NSW, a culture borne of a “reverse onus of proof” and the effective
lack of any defence to prosecution is inconsistent with the protection of
individuals in a criminal jurisdiction.
A failure to challenge to developing practices will lead to the
practical extension of the WHS Coercive powers.
• Reduced protection for individuals in a criminal
context; &
• potentially unmeritorious decisions to prosecute.
The consequences of
extension include:
• “No blame” enquiries to obtain information for prevention; &
• “apportion blame” enquires to obtain information to secure
prosecutions for breach.
Ideally, we need a 2
stream investigation
process that facilitates:
• The best protection for individual rights is the adoption of
the Best Practice Principles of the Administrative Law
Review Council, particularly the accreditation of persons
before they can use coercive powers.
Reality means the retention
of the 1 stream system that
seeks to serve 2 masters
End of Presentation 3

12. About the Presenter
Siobhan Flores-Walsh is a Partner in the
Sydney office of Norton Rose Fulbright
Australia.
Workplace Lawyer for over 20 years and
is listed as a leading Australian
Employment Lawyer in:
* Australian Legal Business 2010
* Chambers Global in 2011, 2012 and 2013
* Best Lawyers 2013
* Asia Pacific Legal 500 2012 and 2013
Siobhan can be contacted on 02 9330 8280 or 0414953161
siobhan.floreswalsh@nortonrosefulbright.com

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