Notices for Obtaining Information or Documents Under the National Law

The National Law gives powers to Regulatory Authorities to obtain information or documents by notice from specified persons for monitoring compliance or undertaking investigations (sections 206 and 215, see section 6.4.2, Australian Childcare Regulation for further details). 

These provisions do not specify what information is required to being included in such notices but a recent Victorian Court of Appeal case of Aurora Construction Materials P/L and Epping Transport P/L v Victorian WorkCover Authority gives some guidance. Although this was an occupational health and safety case, the provision under review. section 9, Occupational Health and Safety Act 2004 (Vic) (OHSA), was in broadly similar terms to the wording of similar provisions in the National Law:

9    Power to obtain information
(1) For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to—
(a) give the Authority such information as the Authority requires; or
(b) produce a document in the custody or control of the person.

In this case, the applicants (Aurora Construction Materials and Epping Transport) failed to comply with a notice under section 9(1) issued by the Victorian WorkCover Authority. and were successfully prosecuted for failing to comply. In this case the applicants sought leave to appeal from that decision in relation to the validity of the notices. The applicants argued that the notice was not valid because it failed to:

• Identify the matter(s) which constituted the suspected contravention(s) of the OHSA; 
• Disclose on their face the section of the OHSA which was the subject of the suspected contravention(s); or 
• Enable the Applicants to determine whether the requested documents had been validly sought.

The Court held that the notice was valid giving leave to appeal but dismissing the applicants' appeal. The majority judgment in this case was given by Kaye JA who outlined the requirements of such notices:

The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice (para.79)

Kaye JA went on to detail these requirements in the context of the OHSA:

...Thus, the requirement, that the notice must demonstrate, on its face, that the Authority is entitled to the documents or information sought in the notice, has the effect that the notice must sufficiently specify the suspected contravention, or contraventions, that is or are the subject of the investigation, pursuant to which the information and documents are sought. In the absence of that specification, the recipient of the notice would not be able to assess, first, whether the Authority is entitled to demand the production of information and documents to it, and, secondly, whether the documents and information, specified in the particular notice, are within the ambit of that entitlement of the Authority.

In addressing that question, it is important to bear in mind that the information and documents, specified in a notice under s 9, are sought for the purposes of an investigation which may not be complete. As the respondent has correctly pointed out, the information and documents, sought in such a notice, may be necessary to fill in gaps of information, or to elucidate matters which are unclear. The investigation in question may be at an incipient or early stage. For those reasons, in considering the validity of the notice in a particular case, it is important to bear in mind the caution, that has been reiterated in a number of the cases, that the issue, of the validity of such a notice, should not be addressed in an over-technical or hyper-critical manner. That caveat is of particular relevance to the service of notices under the OHSA, which has, as its express object, the securing of the health, safety and welfare of employees and other persons at work, and the elimination of risks to the health, safety or welfare of employees and other persons at work.

Nevertheless, the circumstance, that, as an investigation might be at a stage at which it would be premature to particularise a specific provision of the OHSA that was suspected to have been contravened, does not logically prevent the specification in a notice of the nature of the suspected contravention, or suspected contraventions, of the OHSA or regulations. In ordinary usage, a ‘suspicion’ is a state of mind that, while being short of proof of, or belief in, a state of facts, is more than a mere idle wondering, or speculation, as to the existence of that state of facts. In particular, it involves an actual apprehension, of the existence of a state of facts, which lacks either proof, or sufficient proof, to give rise to a belief in that state of facts. It follows that the Authority would not have the power to serve a notice, under s 9, unless it is seized of sufficient knowledge or information concerning the possibility of a contravention of the OHSA or regulations, so as to possess such an apprehension or suspicion by it that a provision or provisions of the OHSA or regulations may have been contravened (paras 87-89).