The Coercive Information-gathering Powers of Government Agencies

In 2008 the Attorney-General's Department of the Australian government published a report on their website called The Coercive Information-gathering Powers of Government Agencies. The report is introduced with the following statement:

"Coercive information-gathering powers are important powers possessed and widely used by many government agencies. In this report the Council describes a range of best-practice principles it considers will ensure that agencies use the powers effectively, efficiently and with due regard to individual rights."

"Report 48" offers and explains guidelines and parameters for government agencies in obtaining information for their departmental purposes.

In 2015 a NSW Supreme Court case (Perilya Limited v Nash (2015) NSWSC 706) revealed the broad powers that the NSW Regulator (now SafeWork NSW) had to obtain documents that were in the possession of a PCBU (business, corporation, organisation, body corporate, etc.)

Perilya Broken Hill Ltd operated a mine at Broken Hill NSW where an employee suffered serious injuries when he fell 14 metres down a shaft in June 2012. The NSW Department of Trade and Investment investigated and in May 2013 an inspector directed PBHL's holding company – Western Australia-based Perilya Ltd to provide him with:

• the minutes from all Board meetings convened between May 2008 and December 2012 - the request was not confined to minutes that dealt with safety; and

• copies of all documents produced between May 2008 and December 2012 for the purpose of advising its directors on safety matters at the Broken Hill Mine.

Perilya provided redacted versions of the relevant documents, and then refused two statutory requests to provide un-redacted copies, claiming the omitted material was commercially sensitive and confidential information. The defendant was ordered to pay $40,000 for two offences of not complying with a notice to produce under s155 of the Work Health and Safety Act 2011 (NSW) Perilya was also ordered to pay approximately $74,000 in costs.

What the WHS Act Says

Section 155 of the WHS Act says that if the Regulator has reasonable grounds to believe that a PCBU is capable of providing documents, information, or giving evidence that will assist the Regulator to locate a possible contravention of the WHS law or to monitor or enforce compliance with WHS law, then those documents or information or evidence must be given to the Regulator.

This raises some questions

- What if the documents do not mention health and safety matters? Does the NSW WHS Act still apply?

- And what if the documents contain commercially sensitive information?

- What if the documents are created and located at the PCBU’s head office in another State.

- And what if some of the documents were created before the WHS Act came into force?

What the NSW Supreme Court Decided

The NSW Supreme Court decided that the NSW Regulator's powers to obtain documents or information under section 155 are “broad, information-gathering, coercive powers”.

And in this particular case they decided that the board minutes asked for had to be handed over, even if:

- there is no reference to health and safety matters in those documents

- there is commercially sensitive matter in those documents

- those documents were created and are held at Head Office in West Australia

- some of those documents were created before the WHS Act came into force

The fact that documents, such as board minutes, do not mention health and safety could well demonstrate that the board members were not carrying out their duty of due diligence at a time when they should have been in action.

Effect on other States

Justice Hall of the Supreme Court also did not consider there to be territorial limitations to notices issued under s155. Although this was a NSW Supreme Court decision it will be referenced in any similar court action in other Australian States because Regulators in other States have the same or very similar powers to obtain documents.

Regardless of where an organisation operates in Australia, all duty holders in that workplace should be resourced and compliant with the health and safety law in that location and workplace documents should properly reflect the appropriate actions that WHS duty holders are required to take and demonstrate.

For more information, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

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