July 22, 2019

July 22, 2019

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Beyond Borders – Proposed Changes to the NSW Work Health and Safety Act

On 7 March 2018 the NSW Government introduced the Work Health and Safety Amendment Bill 2018 into the Legislative Council.

The Bill is intended to implement 6 of the 11 recommendations arising from a recent statutory review of the Work Health and Safety Act 2011 (NSW) (NSW Act) and to accommodate police responses to active armed offender incidents.

If passed in its current form, the Bill will:

  • empower SafeWork NSW inspectors to record interviews using a sound recording or audio visual device without the consent of the interviewee, provided that the interviewee is first informed that he or she is to be recorded. EPA inspectors already have (and use) such a power when investigating compliance with environmental laws. The inspector must provide the interviewee with a copy of the recording as soon as practicable after it is made
  • empower SafeWork NSW to require the production of documents from outside of New South Wales, such as from the head office, data centre or control room of a business which operates in New South Wales
  • empower SafeWork NSW to require a person located outside of New South Wales to give oral or written evidence in relation to matters being investigated under the NSW Act
  • exempt from prosecution individual members of the NSW Police Force when responding to particular active armed offender incidents.

Expanded Investigative Powers 
The proposed expansion of the regulator's investigative powers has potential implications for any organisation which operates both within and outside of New South Wales. Those organisations will need to be aware of the scope of the changes and their impact on the rights and responsibilities of the organisation and its personnel.

For example:

  • although Victorian and South Australian law enshrines the privilege against self-incrimination, a person in either of those states who is served with a section 155 notice under the NSW Act would not be excused from answering a question or providing information or documents on the ground that doing so may tend to incriminate him or her (although the information provided under compulsion cannot always be used against its provider personally)
  • the investigative powers may be used by SafeWork NSW to investigate whether a person who is usually based out of New South Wales but who is an officer of an organisation with a presence in New South Wales has complied with his or her duty of due diligence imposed by the NSW Act.
Copyright 2019 K & L Gates


About this Author

Dominic Fleeton Work Safety Lawyer KL Gates

Mr. Fleeton is a workplace relations and safety lawyer who advises private sector and government employers on all facets of industrial relations, employment and work health and safety law. Mr. Fleeton is experienced in developing and implementing industrial relations strategies, enterprise bargaining, responding to lawful and unlawful industrial action, and dealing with collective and individual employee disputes. He regularly represents clients in proceedings brought in the Fair Work Commission, the Federal Court and the Federal Circuit Court.

Erica Elliot, KL Gates Law Firm, Sydney, Labor and Employment Law Attorney
Senior Associate

Ms. Elliott's practice focuses on workplace health and safety, including the provision of training, pre-emptive compliance advice and incident response strategies and implications.

She also has significant experience in commercial litigation, gained firstly from having worked as a Supreme Court Judge's Associate and then on litigious matters for a number of major, international clients.

Ms. Elliott has appeared in the General Equity Division and the Administrative Law, Commercial and Construction and Technology lists in the Supreme Court of New South Wales and has experience in the following Australian courts: Court of Appeal, Court of Criminal Appeal, Defamation List, Victorian Local Court and Federal Court.