26 November 2014
Practice Group(s):
Labor, Employment &
Workplace Safety
New South Wales Supreme Court Clarifies
Inspectors' Powers Under Sections 155 and 171 of
the WHS Act
Australia Labor, Employment and Workplace Safety Alert
By John Makris, Erica Elliott, Matthew Sier
Introduction
The recent decision of Hunter Quarries Pty Ltd v New South Wales (Hunter Quarries
Decision),1 has provided welcome clarification regarding the operation of an inspector's
powers under sections 155 and 171 of the Work Health and Safety Act 2011 (NSW)
(WHS Act).
Key Points
The key points from the Hunter Quarries Decision are as follows.
•
First, once an inspector has exercised the statutory power of entry at a
workplace, including in order to pursue an investigation into a "notifiable incident",
the inspector is empowered by s 171 of the WHS Act to require:
o
a person to tell him or her who has custody of or access to a document
o
that person to produce that document, while the inspector is still at the
workplace or later
o
a person at the workplace to answer the questions asked by
inspector.
the
These powers are not limited by s 155 of the WHS Act.
•
Second, an inspector may only exercise the powers granted by s 155 of the WHS
Act if appropriately delegated by the regulator pursuant to the WHS Act.
•
Third, the functions and powers granted to inspectors under the WHS Act must
always be considered in light of the statutory purpose of ensuring that workers
and other persons are protected against harm to their health, safety and welfare
through the practical elimination or minimisation of risks.
Background
On 9 September 2014, a Hunter Quarries (Hunter) employee died when his excavator
rolled and crushed him on-site.
Following notification to the regulator, the Department of Trade and Investment
(Department), the site was attended by Inspector Flowers (Inspector).
A dispute arose between Hunter and the Department concerning the Inspector's intention
to exercise his powers under s 171 of the WHS Act.
1
Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580.
New South Wales Supreme Court Clarifies Inspectors' Powers Under
Sections 155 and 171 of the WHS Act
The underlying issue was whether, pursuant to s 171, the Inspector was entitled to
verbally interview Hunter Quarries' staff over the death of their colleague.
Hunter, however, advised the Inspector that it considered the appropriate course for him
to pursue his investigations was under s 155 of the WHS Act.
While s 155 gives the regulator (or an appropriately delegated inspector) power to orally
interview a person, the regulator must not exercise this power, unless it first takes "all
reasonable steps" to obtain required information in writing or through the production of
documents. 2
A dispute ensued and Hunter approached the court seeking a declaration as to the
proper construction of the WHS Act. 3
Competing Constructions of the WHS Act
Hunter's Contention
Hunter argued that the powers granted to inspectors under s 171 of the WHS Act are of a
specific and limited kind. It argued that those powers only applied to compliance matters
under the WHS Act and not to:
•
the investigation of possible historical breaches of the WHS Act or
•
investigations to determine whether a notifiable incident amounted to an offence
under the WHS Act.
In this way, Hunter argued that the Inspector was not entitled to exercise powers under s
171 in his investigation and that investigations of possible contraventions of the WHS Act
could only be conducted under the powers granted to regulators by s 155 of that Act.
Department's Approach
The Department, however, argued that an Inspector's powers under s 171 of the WHS
Act were not as confined as Hunter suggested.
The Department contended that s 171 gave inspectors particular powers, which they
were entitled to use whenever entering a workplace, including when investigating an
incident notified to the regulator under s 38 of the WHS Act (as was the case here).
Decision
Schmidt J dismissed Hunter's application and concluded that the Department's
construction of the WHS Act was correct.
Rejection of Hunter's Contention
In rejecting Hunter's construction of the WHS Act, Schmidt J noted that:
•
it did not accord with the WHS Act purpose of ensuring workers and other
persons are protected against harm to their health, safety and welfare through
the practical elimination or minimisation of risks
2
Work Health and Safety Act 2011 (NSW) s 155(4).
Hunter also sought an order restraining the Department and all inspectors appointed under the Mine Health and
Safety Act 2004 (NSW) and / or the Work Health and Safety (Mines) Act 2013 (NSW), from obtaining information by
the exercise of the powers granted under s 171 of the WHS Act. This order was not addressed specifically by Court.
However, the net effect of the judgment is that it ultimately failed.
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New South Wales Supreme Court Clarifies Inspectors' Powers Under
Sections 155 and 171 of the WHS Act
•
it would restrict an inspector who has responded to a notification to the regulator,
from accessing information or documents which might evidence the commission
of an offence
•
it did not rely on any express limitations or by way of necessary implication
contained within the WHS Act
•
if accepted, it would bring about an (unworkable) situation of an inspector being
permitted only to require access to be given immediately to documents and
questions to be answered by persons at the workplace in relation to compliance
matters, but not to such documents which would shed light on possible
contraventions or evidence an offence which might later be prosecuted
•
ultimately, s 171 of the WHS Act is not expressly confined to circumstances
where an inspector suspects a contravention has occurred and the absence of
that limitation reflects that inspectors' functions include not only ensuring
compliance, but also investigating contraventions and prosecuting offences.
The Relationship between s 155 and 171
Schmidt J also commented more generally about the relationship between sections 155
and 171 such that:
•
s 155 is not concerned with the powers which inspectors may exercise on entry
at a workplace. Rather, it makes express provision for the circumstances in which
a regulator may serve written notices requiring persons to produce certain
information and documents or to appear to give evidence
•
s 155 presupposes that the regulator already has information on which the
required opinion could be formed and the obvious source of such information is
an inspector who has exercised s 171 powers
•
in contrast, an inspector's exercise of s 171 powers does not depend on the
inspector forming any such opinion. The only limitation on the exercise of those
powers is that they be exercised on entry at a workplace
•
without such an investigation under s 171, a regulator would only have whatever
might be contained in a notification it receives, on which to form an opinion that
must be based on "reasonable grounds" to require further information under s
155. This, however, would be problematic because what is provided in a
particular notification (of itself) may be an insufficient basis for such an opinion to
be formed, without entry and investigation by an inspector.
Requirement under s 155 to have appropriate delegation
A final important factor for Schmidt J in reaching her conclusion was that although an
inspector's exercise of s 155 powers depends on the regulator's prior written delegation,
this did not mean that the investigative functions which may be exercised on notification
of a notifiable incident did not exist or were not then available to be exercised by the
Inspector.
Concluding Remarks
The Hunter Quarries Decision has clarified the operation and effect of s 155 and 171 of
the WHS Act.
Employers and work health and safety officials now need to be aware of the full extent of
the powers given to inspectors under s 171 of the WHS Act.
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New South Wales Supreme Court Clarifies Inspectors' Powers Under
Sections 155 and 171 of the WHS Act
One issue, however, which the Hunter Quarries Decision may bring to light, is the effect
of Schmidt J's comments concerning the strict requirement that s 155 powers, to be
effectively exercised by an inspector, must be appropriately delegated under s 154 of the
WHS Act.
Although the court did not go any further than to note this requirement, the law remains
unclear about the effect of evidence gathered pursuant to unauthorised, or
inappropriately delegated, s 155 powers. The law also remains unclear as to the status of
a respondent's privilege against self-incrimination where powers under s 155 are not
delegated appropriately.
These matters will require further consideration.
Authors:
John Makris
john.makris@klgates.com
+61.2.9513.2564
Erica Elliott
erica.elliott@klgates.com
+61.2.9513.2346
Matthew Sier
matthew.sier@klgates.com
+61.2.9513.2534
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