By Michael Selinger
A serious incident has happened at your workplace and you initiate your incident response system. Injury management processes are actioned, emergency services and the safety regulator are notified, and your initial investigation commences, including taking photos, interviewing workers and determining the cause of the incident.
But what happens to all the material created during your investigation and will you be required to hand it all over to the safety regulator? Not if the investigation material is covered by legal professional privilege.
One important component of any incident response system is to implement a process that allows your business to quickly and effectively investigate a serious workplace incident without the concern that material created during the investigation can later be used against your business, or its officers, by a regulator in a prosecution or coronial inquest.
To assist your business to achieve this outcome, it is important to ensure that any material and communications created during an internal investigation into a serious workplace incident are protected by legal professional privilege.
What does ‘legal professional privilege’ achieve?
Legal professional privilege provides your business with the legal right to resist any order for production of materials created during an internal company investigation. Such an order for production could be issued by the safety regulator or a court subpoena (e.g. the Coroner’s Court). This legal right is recognised and codified in all safety laws throughout Australia, other than in Western Australia, where it exists via the common law (although this will also be codified next year).
There have been a number of safety prosecutions across Australia where a business has failed to trigger legal professional privilege sufficiently early in an investigation, so the business created damaging written material that was not protected by legal professional privilege. The clearest example is where a detailed ICAM is undertaken that sets out the defects in the system of work, warts and all, and then this report must be handed over to the safety regulator.
Therefore, it is important for your business to initiate the protection of legal professional privilege as early as possible when a serious incident happens so that there is the greatest level of protection over the whole of the investigation. The challenge is to ensure that the process to obtain legal professional privilege over an investigation is activated early and in relation to any incident which may progress to enforcement action against a company or its officers.
How to set up legal professional privilege
If any incident has the potential to progress to an investigation by the safety regulator, a nominated person in your business should request (either verbally or in writing) to engage a law firm.
In response, the law firm can immediately confirm it will act for your business to provide advice on the incident.
Importantly, the law firm will request your business to undertake an internal investigation (e.g. an ICAM or its usual investigation process, including retaining a consultant), but to label the investigation documents ‘Strictly Confidential’ and to address any draft report to the law firm.
The investigation then proceeds as normal and a draft report is prepared and labelled confidential.
And so, if the regulator requires production of a copy of the investigation report, your business does not need to provide any of the investigation material created by the business after the law firm was engaged, as it is protected by legal professional privilege.