The Safety Institute‘s OHS Professional magazine for December 2009 included an article (originally published in an OHS newsletter from Piper Alderman for those non-SIA members) about the application of legal professional privilege using a New South Wales Industrial Relations Commission decision as its basis (Nicholson v Waco KwikForm Limited). The case received considerable attention by OHS law firms.
The best summary of the decision was written up in the Regulations At Work newsletter:
“The NSW Industrial Court in this case held that certain documents were protected by legal professional privilege because the dominant purpose for their creation was to provide material to the defendant’s solicitors so that the solicitors could provide legal advice. The relevant documents were investigation notes and a report prepared by the defendant Waco Kwikform Limited’s national OHS manager, a handwritten statement from the project supervisor and a statement by a witness to the incident.”
For the layperson the important element in legal professional privilege is that it is a privilege not a rule or obligation, although the law firms go out of their way to promote the application of this privilege. To a large extent, the promotion of “LPP” (for short) contributes to the complexity of safety management and the growing perception that OHS law is primarily about “covering one’s arse” rather than preventing a recurrence of an incident.
Certainly LPP is an impediment to accountability for inept safety management. There are similarities with political parties and governments who hide behind loose interpretations of freedom of information or through emphasising the commercial-in-confidence of public-private-partnerships.
It could also be argued that the over-application of LPP encourages the personally and professionally hazardous action of whistleblowing. (The same edition of OHS Professional has a curious article on OHS whistleblowing that seems to relate more to reporting of minor OHS issues to regulators rather than “exposing the corrupt practices of others”, as defined by the Macquarie Dictionary.)
It is also important to realise that LPP is
Australia has gone further in some of its legislation to rename the privilege to “client legal privilege” in order to “reflect the fact that it is a right of the client.” Significantly the legal industry continue to refer to the privilege as “legal professional privilege” – the power of jargon.
It seems that the role of LPP in safety management is almost one of timing. Deacons law firm (Norton Rose from tomorrow) in relation to the Kwikform decision says
“Involving lawyers in the immediate aftermath of a critical incident will assist in establishing privilege for communications arising from the investigation.”
The SIA article by lawyers in Piper Alderman, says that LPP
“does not extend to communications or documents prepared prior to seeking legal advice or before legal proceedings are anticipated.”
This last comment perhaps indicates why lawyers promote a close relationship with businesses throughout the safety management process – LPP can be applied at any point in the safety management process “if legal proceedings are anticipated”.
Law firms with a good OHS practice know when to intervene or assist and when to let a business run. Safety management works best when a business owner accepts their legal responsibility for a safe and healthy workplace and fails when an owner keeps feeling the need to ask a lawyer for their (costly) opinion. Safety professionals and OHS regulators are often pushing against the creep of many in the legal industry. (WorkSafe Victoria has just released a position statement on answering questions that addresses LPP in one particular jurisdiction and is far more useful that most of the legal opinions on LPP and OHS)
The best advice for finding legal services is the same as for buying a plasma television – do your research into what you really want, look around for the best deal (not necessarily the cheapest), use it only when you need it and make sure there is an extended warranty for manufacturing faults.
This decision seems to be reinforcement of LPP as a tricky tactic to avoid disclosure of material which could become evidence if a prosecution was initiated.
So, if you ring your lawyers as soon as an incident takes place, and they instruct you to investigate the incident and report back to them, none of the information will be available to the regulator if they proceed to investigate – irrespective of course, of the PURPOSE of their investigation.
In reality only a small percentage of incidents investigated by the regulator proceed to prosecution. Those investigated are similarly a small percentage of those notified. Investigations are initiated in the public interest – and it is in the public interest to have the full facts known about a incident that causes serious injury or death – so that the information can be used in the service of prevention – the hazard/industry/work practice can be targeted for improvement.
Withholding information from the regulator or other investigators serves the purposes of the legal profession only, who get to reinforce their specialness and mystique. It is not their client who will never know whether other outcomes, better outcomes were possible had the information been provided freely and without making the investigation a harrowing experience for the company/business owner etc.