OHS regulators will have new and increased powers of investigation under the upcoming national OHS system, according to a law firm.
In some jurisdictions, the most significant change will be the removal of the right to protection against self-incrimination when answering an inspector's questions, said Michael Selinger, partner at Holding Redlich
“This will mean that even if answering the question might incriminate you personally, you are still required to answer the question,” he said.
“This is a much broader power than the police possess where the right to silence is protected.”
Speaking ahead of the Safety Conference, to be held from 25 to 27 October 2011 in Sydney, Selinger said there will be a limited protection, however, as the answer provided cannot be used against you directly in any prosecution of you personally.
“It is also important to remember that any answers you provide to an inspector on a voluntary basis can be used against you. So be sure to understand when an inspector is exercising their powers and when they are just talking with you and your staff informally,” he said.
Selinger, who was speaking with a focus on changes within NSW, said that in managing a serious workplace incident which is likely to be investigated by the safety regulator, one of the most important factors to consider is managing the collection and flow of relevant information.
“For example, your business should consider appointing a senior person to be the point of contact for day-to-day dealings with the inspector,” he said.
“If you are in a particularly large organisation it is also important to understand how information will be provided to the inspector and whether any of the information is, or should be, protected by legal privilege (for example, an internal investigation report requested by legal advisors).”
For OHS professionals, he said it is critical that they ensure the business is aware of what is involved in the investigation process of a serious workplace incident and the ramifications if a clear procedure is not adopted.
“Importantly, an OHS professional will be in a good position to develop or refine those clear procedures and ensure that they are in place to deal with such an incident should it occur,” he said.
“Also critical is that all personnel are trained and understand their rights and obligations in dealing with a safety inspector.”
Selinger will be speaking at the upcoming Safety Conference, to be held from 25 to 27 October 2011 at the Sydney Showground and Sydney Olympic Park. For more information visit www.thesafetyshow.com.au.