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Recommendations of the Investigation and Prosecution Review

Recommendation 1

That all SafeWork SA personnel involved in investigating incidents ought to immediately receive appropriate foundational skills training in investigations. It is important that this training be given with reference to the legislative framework established by the Work Health and Safety Act 2012 (SA) and what is required to prove offences under that Act. Essential components of the training are:

  1. application of the s 155 and 171 compulsive powers in a practical context;
  2. conducting interviews;
  3. experts - when, why, who, how;
  4. what is admissible evidence.

Response

A training program focused on foundational investigation skills was delivered to SafeWork SA  personnel in August 2017 by the Queensland Regulator and an expert in work health and safety law.

Further work is ongoing to update SafeWork SA's regular training framework. This work involves a new partnership with the Charles Sturt University Graduate School of Policing.

Recommendation 2

It would be beneficial if SafeWork SA investigations that are currently under way but not yet referred for legal advice were peer reviewed.

Response

All SafeWork SA investigation files open as at the date of the legal advice are undergoing peer review within SafeWork SA and a review by outposted solicitors from the CSO. This process will be completed in the week commencing 25 September 2017.

Recommendation 3

A training framework be developed, which identifies future and current training requirements, and for whom, for the ongoing delivery of training in relevant aspects of investigating and prosecuting breaches of the work health and safety laws.

Response

A new role within SafeWork SA of Director, Investigations has been created. The role has been filled by a Detective Chief Inspector of the South Australia Police (SAPOL) following a merit based process. The purpose of the new role is to, amongst other things, develop and implement an ongoing training program about all facets of investigations and prosecutions for SafeWork SA personnel involved in the investigation of incidents.

In addition, as stated in the response to Recommendation 1, SafeWork SA is partnering with Charles Sturt University to develop a sustainable investigative training program with the University's Graduate School of Policing.

Recommendation 4

SafeWork SA continues with its review of the current staffing arrangements of the investigation team and any proposals as to classification.

Response

This review is underway. Staff have been engaged throughout the process and asked for their feedback on current arrangements. The review is examining capacity, workflow and capability to ensure the efficient and effective delivery of better quality services and outcomes. Alignment with other investigation teams across Government will also be considered as part of the review.

Recommendation 5

That there be an overarching review of current SafeWork SA procedures and practices relating to identifying which incidents will be the subject of an initial response, by whom, and what will be done.

Response

The current "First Response Protocol" dealing with these issues was reviewed, revised and circulated to staff in August 2017. The Protocol will continue to be monitored and updated as required.

Recommendation 6

Implementation of a rigorous case management and review regime for the management and review of investigations from the point of notification to conclusion. The regime should involve inspectors, investigators, managers, and legal advisers, and at relevant points, the Regulator.

Response

The existing case conference procedure was reviewed and amendments made. The procedure now includes a legal case conference process involving CSO outposted lawyers and the Director, Investigations. All investigation files are subjected to a legal case conference before being submitted to the CSO for prosecution advice. This process ensures investigation direction, guidance and mentoring is applied throughout the process and allows for early legal advice to be provided.

In addition, an internal investigative quality process is being implemented to manage investigations from commencement.

Recommendation 7

That SafeWork SA staff receive education about the role of SAPOL when attending incidents which are also the subject of SafeWork SA investigations, with a view to being able to make informed decisions about what investigations must still be undertaken for SafeWork SA  purposes. It would be helpful if the arrangements for investigation materials to be exchanged between the two investigation agencies could be pursued.

Response

Training regarding the sharing of information between SafeWork SA and SAPOL is underway, as is training regarding the role of SAPOL and communications with SAPOL when incidents involve both a SafeWork SA and SAPOL response. Arrangements for the exchange of investigation materials are already in place. This recommendation will be further addressed through the training framework referred to in the response to Recommendations 1 and 3 above.

Recommendation 8

As part of the case management and review regime, the role of the CSO out-posted solicitor ought be clearly defined.

Response

Training on the role of outposted CSO lawyers has been delivered to SafeWork SA personnel. In addition, SafeWork SA has increased the number of outposted CSO lawyers in the agency from one to three. The outposted CSO lawyers are integrated into the investigation process and provide daily advice.

Recommendation 9

That SafeWork SA and the CSO revisit their respective requirements and expectations, and reach a common understanding, about:

  1. guideline timeframes for the delivery of briefs to the CSO, the CSO's initial advice, and commencement of any prosecution within the statutory two year period;
  2. the format and content of investigation briefs submitted to the CSO;
  3. the CSO's involvement in the engagement of experts by SafeWork SA , and in particular, when that will occur and in what form;
  4. the CSO's role in the process of discussions with PCBU's about EUs.

Response

Work is being undertaken to develop and implement initiatives with respect to these recommendations.

Recommendation 10

The CSO ought to work with SafeWork SA to compile and maintain a centralised repository at SafeWork SA of CSO advices and information on topics relating to the investigation and prosecution of WHS Act offences.

Response

A digitised centralised repository of CSO advices and other relevant information accessible to both SafeWork SA and the CSO is under development.

Recommendation 11

The CSO ought to develop and maintain its own centralised repository of advices and information on topics relating to the investigation and prosecution of WHS Act offences, that is accessible to all relevant CSO staff.

Response

See response to Recommendation 10 above.

Recommendation 12

That SafeWork SA explores ways in which it can identify and select people with appropriate expertise (experts) to contribute to investigations, and who have a full appreciation of their legal responsibilities with respect to giving expert opinions.

Response

In the short term, SafeWork SA is seeking input from the CSO at the time of identifying and engaging experts. For the longer term, SafeWork SA is working with the CSO to develop best practice guidelines about the engagement of experts.

Recommendation 13

That the CSO assists SafeWork SA with the drafting of a new template letter for engaging experts.

Response

A draft template letter has been developed and is under review.

Recommendation 14

That the victim support services offered by SafeWork SA be reviewed. There should be formalised policies and procedures in place about which victims will be engaged with and how that engagement will occur, having particular regard to the requirements of the Victims of Crime Act 2001. The processes ought to include those for communicating with victims and next of kin for the purposes of assessing EU applications.

Response

This review has commenced. The services will be aligned with other like services throughout Government. Training on the issues identified in the recommendation is also being integrated into the ongoing training framework.

Recommendation 15

That the topic of the legal requirements as to particulars, and the CSO's recommended approach to their drafting, is revisited by the Crown Solicitor.

Response

CSO is undertaking a review of this issue and training will be delivered to relevant staff when the review is completed.

Recommendation 16

That SafeWork SA ought to review the current guidelines published under s 230(3) of the WHS Act in relation to the acceptance of WHS undertakings ('EUs'), with a view to rewriting and consolidating those guidelines.

Response

A review of the guidelines is underway, and includes reference to and consideration of the guidelines associated with Enforceable Undertakings in other jurisdictions.

Recommendation 17

The reconsideration of the EU guidelines ought to include SafeWork SA reflecting upon its current practices in order to embed a coherent and consistent approach through adherence to the guidelines.

Response

A review of current practice and procedure with respect to the application of the guidelines is underway.

Recommendation 18

The Regulator may wish to seek the views of other regulators operating under the model WHS laws about whether their ability to exercise the compulsive powers past the point of when proceedings are commenced is impeded.

Response

The newly appointed Executive Director of SafeWork SA has commenced discussions with other state and federal safety regulators. The discussions are ongoing and will work towards aligning processes across jurisdictions.