When a workplace health and safety (WHS) incident occurs, the natural response of many businesses is to immediately launch an internal investigation. While this may appear sensible from a risk management perspective, it can in fact expose the company — and its officers — to significant legal risks.
Under the Work Health and Safety Act 2011 (Qld) (and its harmonised counterparts), regulators have broad investigatory powers. In particular:
- Section 155 empowers the WHS Regulator to require a person to provide information, documents, or evidence.
- Section 171 allows an inspector to compel answers to questions and require production of documents during an investigation.
An internal investigation report — no matter how well-intentioned — can become a liability if it is called upon under these powers. These documents often contain:
- Detailed reconstructions of the incident, based on the limited information known in the immediate aftermath of a workplace incident.
- Concessions, inferences, assumptions and interim conclusions about causation, or “contributing factors”.
- Implicit or explicit admissions that WHS duties may have been breached.
In effect, a company’s own investigation can and often does become a “mudmap” for the prosecution’s case, charting the pathway to potential charges and penalties.
Key Takeaway
After a WHS incident, the priority should always be the safety of workers and compliance with notification obligations. However, when it comes to investigating causes and assigning responsibility, companies should proceed with caution. An internally prepared report may ultimately do more harm than good if it ends up in the hands of the regulator or a prosecutor.
Rather than rushing into an internal investigation, businesses should seek immediate legal advice. A safer approach is for the company’s lawyers to commission any investigation under legal professional privilege. This ensures that findings are properly protected, and that the business maintains control, as much as they legally can, over what information and theories on causes/contributing factors are disclosed to the regulator.
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