One of the most powerful administrative mechanisms embedded within the model Work Health and Safety (WHS) Act is the regulator’s power to compel the production of documents, objects, and information under Section 155. For several years, multi-state employers and corporate boards attempted to resist these notices by employing traditional jurisdictional strategies, arguing that state-based safety inspectors could not enforce notices across state borders or demand internal corporate governance records.
A definitive ruling by the Supreme Court of New South Wales firmly rejected these arguments, affirming that a safety regulator’s investigative powers under the model Act are virtually uninhibited by geography or corporate confidentiality.
The Battle for the Minutes
The litigation followed a severe operational incident at the Broken Hill mine site where a worker sustained critical injuries after falling fourteen meters down a vertical shaft. A mine safety inspector issued statutory notices under Section 155, demanding that the parent corporation, Perilya Limited, produce unredacted copies of its internal board meeting minutes. The regulator wanted to determine if company directors were actively exercising their positive duty of care under Section 27.
The parent corporation resisted the notices on two fronts:
- The Jurisdictional Argument: It argued that because the holding company was registered and the documents were physically held in a separate state jurisdiction (Western Australia), the local New South Wales inspector lacked the extraterritorial power to enforce compliance.
- The Corporate Shield Argument: It asserted that board minutes are protected corporate communications that fall outside the scope of standard safety-specific documentation.
When the company refused to comply, the regulator initiated enforcement proceedings. The corporation challenged the validity of the notices, taking the matter to the Supreme Court of New South Wales.
The Supreme Court dismissed the company’s objections and upheld the validity of the notices. The judgment affirmed that the legislative intent of Section 155 is to grant regulators wide-ranging powers to investigate potential breaches of the primary duty of care. The court ruled that these powers are not restricted by state borders, provided there is a distinct connection to an incident within the prosecuting jurisdiction.
Furthermore, the court clarified that internal board records are fully discoverable if they contain information relevant to whether the business was allocating resources effectively or exercising due diligence to manage operational hazards. For failing to comply with the statutory notices, Perilya Limited was fined $40,000 ($20,000 per offense) and ordered to pay $74,000 in the regulator’s legal costs.
The Takeaway for Corporate Officers
This judgment strips away any lingering belief that executive corporate communications are automatically shielded from safety inspectors. For company directors and general counsel, this analysis emphasizes three critical compliance rules:
- Expect board-level scrutiny: Following any critical operational incident, expect the regulator to utilize Section 155 notices to demand board-level documentation to test individual director compliance under Section 27 due diligence mandates.
- Document active due diligence: Because board minutes are discoverable under these statutory frameworks, they must accurately reflect active safety governance. Minutes must show that directors are asking targeted questions about critical risk controls, reviewing tracking data, and explicitly authorizing safety budgets.
- Establish a procedural response protocol: Ensure that internal legal and safety teams have a clear protocol to handle Section 155 notices immediately. Refusing compliance or providing heavily redacted documents to buy time can result in corporate fines and substantial adverse cost orders that will be upheld by the courts.
Source Material & Further Reading
- Primary Judgment: Perilya Limited v Nash [2015] NSWSC 706 (Affirming the extraterritorial reach of Section 155 notices over interstate corporate records).
- Statutory Framework: Work Health and Safety Act 2011 (NSW), Section 155 (Powers of regulator to obtain information).
- Corporate Governance Duty: Work Health and Safety Act 2011 (NSW), Section 27 (Duty of officers).
