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Regulator responsibilities

Each state and territory has a work health and safety regulator whose inspectors are appointed to educate, ensure compliance and enforce the laws as necessary.

In South Australia, SafeWork SA is the regulator. Inspectors can issue Improvement, Prohibition, Non-Disturbance and Infringement Notices. If you disagree with an inspector's decision you can, in many cases, seek an internal or external review of the decision. SafeWork SA has a Compliance and Enforcement Policy.

Information about Section 171 and 172 of
the Work Health and Safety Act 2012

Background

Part 9 of the Work Health and Safety Act 2012 empowers Inspectors to obtain information in a number of ways from natural persons (referred to in the Act as individuals) and incorporated entities (referred to in the Act as bodies corporate). In particular, s171 empowers Inspectors who enter workplaces to require information about who has custody of or access to a document; to require that person to produce that document; and to require answers to be given to the Inspector's questions.
 
Failing to comply with such a requirement, without reasonable excuse, is a criminal offence (against s171(6)) punishable by a maximum fine of $10,000 for a natural person and $50,000 for an incorporated entity.

Section 172 of the Act excuses natural persons from answering questions, or providing information or documents on the ground that the answer, or the information or the document might tend to incriminate them or expose them to a penalty.

A natural person who refuses to comply with the Inspector's requirement on this basis will not commit an offence.

However, the s172 excuse is only available to a natural person if the answer/information/document might incriminate that person. It cannot be used to stop other persons from being incriminated.

And the s172 excuse is not available to incorporated entities at all.

The practical context

SafeWork SA inspectors regularly attend workplaces to seek information and documents. Often this may be to investigate the circumstances and the causes of workplace injuries or fatalities.

An inspector might ask persons at the workplace about the incident, or ask persons to provide documents. It is a choice for such persons to decide whether they wish to co-operate. If such persons do co-operate voluntarily, then there is no need for an inspector to rely on statutory powers.

However, on occasions it may become necessary for the inspector to use their statutory powers to compel persons to assist them. If that occurs, then the Inspector must

  • state their name, identify themselves as a work health and safety inspector, and produce their identity card.
  • advise the person that they are now required, pursuant to s171 of the Act to answer the inspector's questions or produce the documents sought by the inspector, meaning that if they now fail to comply with the inspector's requirements without reasonable excuse, they will commit an offence under the Act.
  • advise the person that pursuant to s172, they are excused from answering a question or providing information or a document on the ground that the answer, information or document may tend to incriminate the person, or expose them to a penalty.
  • advise the person that pursuant to s269, nothing in the Act requires them to disclose a document or otherwise provide information that is subject to legal professional privilege.

Once an inspector makes such a requirement, the person no longer has a choice about whether they may co-operate: unless they have a reasonable excuse, they must comply, or they will commit a criminal offence.

If the answer, information or document might tend to incriminate themselves personally (or expose them to risk of penalty) then s172 excuses them from complying - they can refuse to comply without committing an offence.

But s172 does not excuse a person from answering solely because their answer might incriminate someone else - be it their workmate, their manager, the company for who they work, or anyone else. 

And s172 is not available to companies at all. Thus, if a written notice is addressed to a company, it may not use s172 as an excuse for non-compliance. In the absence of any other reasonable excuse it must comply.

It is possible in some circumstances for natural persons to be authorised by a company to speak for and on its behalf. Those persons may be required to answer questions, notwithstanding that they might incriminate the company - but may be excused from answering if the answer might incriminate themselves personally.

Links

National Compliance and Enforcement Policy
Safe Work Australia website