New South Wales has introduced a Bill that will make both miscellaneous amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) and provide certain members of the NSW Police Force with protection from prosecution.
State of the Bill
The Bill was introduced to Parliament and read for a second time on 7 March 2018. If passed, the Bill will commence on the day it receives assent.
Key changes to the Bill:
1. Recording of interviews
Perhaps the most controversial addition is that inspectors will have the ability to record interviews without seeking the person’s consent. The Bill allows an inspector to record any questions and answers given, provided the inspector notifies the person they are being recorded.
Prior to this Bill, inspectors were required to obtain consent to record an interview in accordance with Section 7 of the Surveillance Devices Act 2007 (NSW), but now, as long as the interviewee knows that they are being recorded and have been provided with written notice of that, the recording will be lawful.
Given that persons do not have the opportunity to decline to answer questions under the WHS Act as they would in a criminal investigation with the police, this presents significant changes.
2. A greater reach
The Bill also increases the Regulator’s reach for information while investigating an incident. The current legislation restricts the Regulator to waiting until proceedings are commenced to issue a subpoena in relation to interstate information. Now, their powers are increased, with the ability for the Regulator to extend a Notice to obtain information to company head offices or control rooms in other states or territories.
3. Police protection
A member of the police force will be found not to have failed to comply with his or her safety duties in certain circumstances, such as while responding to armed offenders and certain responsibilities associated with dealing with those armed offenders.
These clauses were brought in after members of the Police Force raised concerns in relation to their duties under the WHS Act and the fact that they would at times be compromised when dealing with armed offenders in the interests of public safety.
What does this mean for you?
If you operate a business that has offices in different states, the new reach for the regulator to obtain information may affect you. While an investigation is undergoing, the regulator can make requests for information from your head office, another office, or a control room in another state.
Most relevant to you as a PCBU, an Officer or a Worker is that you need to be aware that Inspectors can come on site, question you and record that interview. Provided they tell you that they are recording, you will then be required to answer questions.
You will need to be conscious of the way you answer questions and we strongly recommend that if an investigation begins following an incident at your workplace, you give us a call to discuss and prepare yourself or your employees for these interviews that will be recorded and can subsequently be used as evidence in potential proceedings in the future.
If any of these points raise concern for your organisation, call our office on 1300 565 846 to arrange a debriefing on how you can start preparing for these proposed changes.