Proctor : July 2018
23 PROCTOR | July 2018 The Work Health and Safety Act 2011 (Qld) (the Act) provides for the regulator1 to appoint certain public service types2 as inspectors.3 The functions of an inspector include the investigation of contraventions of the Act and assisting in prosecutions of offences.4 An inspector may enter a workplace at any time5 and may enter places other than workplaces when authorised to do so by a warrant.6 The inspector may require the person who has custody of or access to a document to produce it to the inspector.7 Importantly, the inspector may require a person at the workplace to answer any questions put to that person by the inspector.8 The interviewee (and/or the inspector) may insist that the interview be conducted in private.9 And, it seems, the interviewee may insist on having a representative present at the interview. 10 ‘Representative’ is defined to include the workplace health and safety representative for the worker, a union representing the worker, and any other person the worker authorises to represent him or her.11 Although no mention is made of solicitors, lawyers or legal representatives, such representation clearly comes within the catch all “any other person authorised by the worker”. ‘Worker’ is defined very broadly and includes contractors and subcontractors, and even work experience students.12 If the person being interviewed is not a worker, the term representative is not defined but would still clearly include a legal representative. When a solicitor receives a request to act for multiple persons, including management, workers and the business itself in the investigation of an industrial accident, it may be expected that it will involve sitting in as a representative in interviews conducted pursuant to the inspectors’ powers under the Act.13 Whatever assurances the solicitor may have received from the employer who is prepared to pay the costs of the solicitor in acting for the different people being interviewed, the potential exists for conflicts of interest to exist between the various participants, at least as acute as those involved in the criminal trial discussed in part one, in the scenario. A solicitor’s participation as a worker’s representative in an interview is not restricted to the merely passive role of being there to provide emotional support and comfort. The Act acknowledges the right to claim privilege against incrimination.14 It requires a person required to give information to provide the information notwithstanding the claim of privilege15 but provides that the information provided may not be used in civil or criminal proceedings against the person providing the information.16 It is important, therefore, that a solicitor acting for a person in an interview is able to advise the client when privilege should be claimed. It is obviously only incrimination of the person giving the interview which gives rise to the privilege. It may not be claimed in respect of answers that may tend to incriminate a fellow employee or the employer or a contractor to the employer. The solicitor’s advice when to claim privilege should not be influenced by concerns about what the answers may do to his or her other clients. The significance of the answers given to an inspector is such that the solicitor must not be distracted by the circumstances of other clients whose interviews may be yet to come. From an inspector’s point of view, there may be a proper concern that attendance at interviews of lowly employees may be used to prepare management and representatives of the business owner for the questions that they will be asked in their interviews. The privileged position of sitting in on a private interview, in those circumstances, could be subject to misuse to benefit other subjects of the investigation. In addition to the provisions relating to conflicts of duty in rule 11, the Australian Solicitors Conduct Rules (ASCR) provide that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. 17 This paramount duty extends to an investigation or inquiry established or conducted under statute. 18 A solicitor must, therefore, keep in mind not only the juggling of obligations to his or her multiple clients, but also the impact that multiple representation might have on the administration of justice by its impact on the investigation being carried out under the Act. Professional standards In the second of two articles Stephen Keim SC concludes his examination of the risks for practitioners who opt to represent more than one client in investigations of workplace incidents.