There are some significant changes being proposed in NSW with the introduction of the Work Health and Safety Amendment Bill 2018, including exemptions from prosecution for law enforcement officers dealing with armed offenders; on-the-spot fines for contraventions of fall risk management, as well as provisions to allow the mandatory recording of interviews by inspectors during investigations.
Recording of interviews and challenges to regulators
In a significant proposed change, the amendments will allow for safety inspectors to record interviews during inspections without the interviewee's consent. While recording interviews is standard practice in some jurisdictions, like Queensland, this is a fundamental change for NSW. The recording can occur without consent, so long as the interviewee is made aware of the recording.
Exemptions from Work Health & Safety (WHS) prosecutions for law enforcement officers
Police officers, their commanders, and other members of the police force will be exempt from prosecution should they breach WHS duties while responding to incidents involving armed offenders.
The parliament stated that it was unreasonable to expect police officers responding to such incidents to face potential criminal liability under the WHS Act, because they have prioritised public safety over the duties imposed by that Act. It is also unreasonable for police officers within the chain of command to risk personal liability when meeting legitimate community and government expectations by prioritising public safety during these incidents.
The imposed duties will still apply but contravention will not constitute an offence where officers are required to prioritise public safety in these scenarios.
In addition to the changes above, the legislation will also be amended to expand extra-territorial powers of regulators as well as limit challenges to the validity of regulators' appointments.
Extra-territorial powers
The proposed amendments will ensure that SafeWork NSW's powers to obtain information relating to a NSW investigation extend to company offices in other states and territories. This change is intended to address inefficiencies created by regulators needing to subpoena information located interstate after the commencement of court proceedings.
Certification of authority
In order to remove the prospect of challenge to prosecutions based on authority, the amendments will also reduce the capacity of defendants to challenge the validity of regulators' appointments and delegations. The legislation will allow documents certifying the status of persons as inspectors or members of regulator staff to be tendered as prima facie evidence in legal proceedings.
Other recommendations of the 2017 statutory review have already come into operation through the introduction of the Work Health and Safety Amendment (Penalty Notices) Regulation 2017. In response to the review's recognition of an increase in fall-related incidents, the amendment reintroduced on-the-spot fines for contravention of fall-related emergency procedures after their omission from the WHS Regulation in 2011. Contravention of these procedures can now result in a fine of up to $3,600.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
