How WorkSafe applies
the law in relation to
The requirement to
answer questions
A Guideline made under section 12 of the
Occupational Health and Safety Act 2004
WorkSafe Position
Edition No. 1
December 2009
How WorkSafe applies the law in relation to
The requirement to answer questions
What this WorkSafe Position is about
Who does this WorkSafe Position apply to?
This document sets out WorkSafe Victoria’s position on how it will
administer the Occupational Health and Safety Act 2004 (OHS Act)
in relation to the operation of section 100(1)(c).
The Position applies to any person who is required by an inspector
to answer any question(s) put to them under s100(1)(c) of the OHS
Act, where the inspector has entered a place as defined by s98 of
the OHS Act.
Powers under s100 of the OHS Act
The OHS Act gives inspectors extensive powers of entry, enquiry and
investigation. These include powers to require production of documents
and powers to require answering of questions as set out in s100, see
extract below:
100. Power to require production of documents etc.
(1) An inspector who enters a place under this Division may(a)require a person to produce a document or part of a document
located at the place that is in the person’s possession or
control; and
(b)examine that document or part; and
(c)require a person at the place to answer any questions put by
the inspector.
(2) A person must not, without reasonable excuse, refuse or fail to
comply with a requirement under subsection (1).
(3) Before requiring a person to produce a document or part of a
document or to answer questions under subsection (1), an inspector(a)must produce his or her identity card for inspection by the
person and warn the person that a refusal or failure to comply
with the requirement, without reasonable excuse, is an
offence; and
(b)must inform the person that he or she may refuse or fail to
answer any question if answering the question would tend to
incriminate him or her.
4) A person is not liable to be prosecuted for an offence against
subsection (2) if the inspector concerned failed to comply with
subsection (3).
Before answering questions a person will generally be able to seek
advice from an employer association, employee organisation or legal
representative. Section 58 of the OHS Act also allows for a health
and safety representative (HSR) to be present when a person is
being interviewed by an inspector.
Note: s58 only applies when a member of the HSR’s designated
work group (DWG) is being interviewed by an inspector, and only
when the DWG member consents to the HSR being present.
Inspectors will generally wait until a person has obtained advice
before asking further questions. This may not be possible if the
inspector considers their enquiries are being inappropriately
delayed or frustrated.
Date
This WorkSafe Position was made on December 31 2009.
WorkSafe Position on the requirement to
answer questions
When must a person answer question(s) put to them by
an inspector?
The powers of WorkSafe inspectors are mainly set out in Part 9 of
the OHS Act. These include the power to make enquiries under s99.
When answers to questions asked by an inspector making enquiries
are not voluntarily provided, and the inspector considers the answers
are necessary to assist them perform their functions, the inspector will
exercise their power under s100(1)(c) to require the answers be provided.
Note 1. The powers conferred by this section are limited if all or part
of the place is used only for residential purposes (see s107).
Before requiring a person to answer any questions, an inspector must:
Note 2. This section does not affect legal professional privilege
(see s155) or, in the case of a requirement to answer questions, the
privilege against self-incrimination (see s154).
• warn the person that a refusal or failure to comply with the inspector’s
requirement, without reasonable excuse, is an offence
Section 100(1)(c) provides that where a WorkSafe inspector has
entered a place under s98, the inspector may require any person at
the place to answer any questions put to them by
the inspector.
• produce their identity card for inspection by the person
• inform the person they may refuse or fail to answer any question
if answering the question would tend to incriminate them.
If the inspector has done all these things, the inspector may then
require the person (unless they have a reasonable excuse) to answer
any questions put to them.
It is a criminal offence for a person, without a reasonable excuse,
to refuse or fail to comply with this requirement when it is made of
them by an inspector.
These questions are not limited to questions concerning documents
or parts of documents that may or may not have been shown to or
examined by the inspector.
Note: Under s119, inspectors have the power to ask a person to provide
their name and address. This is a separate requirement for answers to
be given to an inspector and is not subject to the same conditions that
apply to an inspector exercising power under s100(1)(c).
Reasonable excuse
In some circumstances, the following may amount to a reasonable excuse:
• the person cannot answer the question based on their direct knowledge
• the person has requested advice before answering the question
• the person is too distressed following a serious incident
• the person relies on the privilege against self-incrimination
• the person is concerned that providing documents or answering
questions may affect legal professional privilege, or
• time is needed to gather information to be able to answer questions.
Legal professional privilege and the privilege against
self-incrimination
Section 100 is subject to operation of legal professional privilege
and the privilege against self-incrimination. This means that if a
person has the proper bases for asserting either of these privileges,
that person will not be required to comply with the inspector’s
requirement to produce documents or answer questions under s100.
This privilege applies only to a natural person and cannot be claimed
on behalf of an organisation unless the person making the claim is
an officer of the organisation who might be subject to officer liability
under s144.
A person may refuse or fail to answer questions an inspector
requires them to answer on the grounds their answer would tend to
incriminate them. If the person is lawfully entitled to refuse or fails
to answer on this ground, the person has a ‘reasonable excuse’ for
the purpose of s100(2) of the OHS Act. This person would then not
be guilty of committing a criminal offence contrary to s100(2) of the
OHS Act.
There will only be a ‘reasonable excuse’ for the purposes of s100(2)
of the OHS Act on the ground of self-incrimination if:
• the person is genuine in their refusal or failure, on this ground, to
answer the question put to them by the inspector
• there is reasonable ground to fear that answering would tend to
incriminate the person
• there is a real and appreciable danger (as distinct from a fanciful,
imaginary, remote, negligible or insubstantial danger) that
answering would tend to incriminate the person.
How the privilege against self-incrimination may operate
The person who is required to answer the question(s) put by the
inspector may have to establish there was, when the inspector
required the question(s) to be answered, reasonable ground to fear
the answer(s) would tend to incriminate them.
For example, an employee may seek to establish that by answering a
specific question they may be exposed to a possible contravention of
s25 of the OHS Act, which requires employees to take reasonable
care for their safety and that of other employees. This ground is
not established however, merely because the employee holds a
belief that, or the employee states that, the answer would tend to
incriminate them if there is no basis for such a concern.
WorkSafe acknowledges this privilege may arise where an answer to
a question would set in train a process that may lead to incrimination
or the discovery of real evidence of an incriminating character [Sorby v
Commonwealth (1983) 152 CLR at 294].
Will the defence of ‘reasonable excuse’ based on the selfincrimination privilege apply to all or any questions asked
by the inspector?
No. Generally, every question that has been required by an inspector to
be answered under s100(1)(c) will have to be separately considered by
the person in order to determine whether or not the person is entitled to
refuse or to fail to answer the question on the grounds that answering that
question would set in train a process which may lead to incriminate or the
discovery of real evidence of an incriminating character.
It is WorkSafe’s position that a general refusal to answer all
questions asked by an inspector is inconsistent with s100(1)(c).
Enforcement
A failure of a person to comply with s100 is a criminal offence
with penalties of 60 penalty units (a person) and 300 penalty units
(a body corporate).
WorkSafe’s position is that s100 is a critical part of the OHS Act.
Contraventions of s100 will be investigated and, in appropriate
circumstances, prosecuted.
Effect of this WorkSafe Position
Under s15 of the OHS Act, this WorkSafe Position does not
give rise to any liability of, or claim against, WorkSafe Victoria.
It does not give rise to any right, expectation, duty or obligation
that a person may not otherwise have. It does not give rise to any
defence that would not otherwise be available to a person.
WorkSafe Victoria will not act inconsistently with this document.
WorkSafe Victoria’s actions in relation to this document do not
affect the operation of the OHS Act or the Regulations made
under the OHS Act.
Glossary
Inspector is a person appointed under Part 9 of the OHS Act.
This includes an investigator.
Place is a place an inspector reasonably believes is a workplace,
or any place if an inspector reasonably believes there is an
immediate risk to the health or safety of a person arising from the
conduct of an undertaking at the place. It includes a car, truck,
ship, boat, airplane and any other vehicle.
Workplace means a place whether or not in a building or
structure, where employees or self-employed persons work.
WorkSafe Victoria
Advisory Service
222 Exhibition Street
Melbourne 3000
Phone
Toll-free
Email
03 9641 1444
1800 136 089
[email protected]
Head Office
222 Exhibition Street
Melbourne 3000
Phone
Toll-free
Website
03 9641 1555
1800 136 089
worksafe.vic.gov.au
Local Offices
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03 5338 4444
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03 5443 8866
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(628 Bourke Street) 03 9941 0558
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03 5021 4001
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03 9565 9444
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03 9485 4555
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03 5831 8260
Traralgon
03 5174 8900
Wangaratta
03 5721 8588
Warrnambool
03 5564 3200
WPS005/01/11.09
WorkSafe Victoria is a trading name of the Victorian WorkCover Authority.