Is your site prepared for the investigators?

Legislation regulating the extractive and mining industries in respect of OH&S and the environment is increasing all of the time. Similarly, the penalties provided for breaching such legislation now include penalties in the millions and jail terms for directors and managers.

An example is the penalty under the  Protection of the Environment Operations Act 1997. This penalty is in respect of the offence of ?wilfully or negligently disposing of waste in a manner that harms or is likely to harm the environment?. The penalty for this offence is:
(a) For corporations: $5 million for an offence that is committed wilfully or $2,000,000 for an offence that is committed negligently.
(b) For individuals: $1 million or seven years? imprisonment, or both, for an offence  that is committed wilfully or $500,000 or four years? imprisonment, or both, for an offence that is committed negligently.

A cynic might argue that such large monetary fines are driven by the fact that government agencies responsible for the administration of such legislation often receive the amount obtained in fines, rather than the fine going to consolidated revenue.

A less cynical person might argue that it reflects the community?s demand for safer quarry operations with less environmental impacts.

Of particular concern are the increasing powers given to investigators to examine alleged breaches of OH&S and environmental legislation. These include:
? The power to require questions to be answered even where they may incriminate  the person answering. This statutory power overrides the common law ?right to silence? and gives many regulatory investigators more powers than the police.
? The power to seize records and items, including computers.
? The power to seize vehicles or equipment  and take samples.
? The power to request that a person accompany an investigator and take all reasonable steps to assist an investigator in the exercise of the investigator?s functions.

A question I often ask mining and extractive industry clients is whether they are confident, if there was an incident and regulatory investigators arrived at their site, that they have the systems and training in place that would ensure that the investigation would be managed by staff appropriately. By ?managed appropriately?, I mean that the site?s response, from weighbridge operator to mine manager, is properly informed  and done in a manner that minimises the liabilities of the company and employees to the maximum extent legally possible.

It is important to note that investigators can arrive onsite when a manager is not there. Given this, it is vital that every site has proper systems and training in place which informs all employees about how to deal with investigators.

Issues that such a system should cover include:
? Who should be called internally.
? Training in identifying whether an investigator is properly authorised  and training in identifying what the investigators? powers are. This is vital because if a person answers a question voluntarily, the cat is, so to speak, ?out of the bag?, and if the person is not fully  informed or trained, he may give answers  that are incomplete or capable of  misunderstanding.
? Ensuring the safety of any investigator while on- site. An issue that can arise is  whether or not investigators must comply with any on-site safety policies.
? The fact that, while you may have to  answer a question, you can generally  request, if the answer would incriminate  you, a certificate of immunity preventing your answer being used against you.
? Whether or not a person being questioned  has a right to legal representation and can refuse to co-operate until legal  representation arrives.

Any system for managing a site?s response to an investigation also needs to ensure that staff is properly trained in answering questions put to them by an investigator. In particular, staff need to be aware:
? They should be concise. There is nothing wrong with a ?yes? or ?no? answer if it is  correct. Also, there is no prize for  volunteering information not asked for.
? They should only answer questions where they have direct knowledge. There is nothing wrong with an ?I don?t know? answer if the person has no direct knowledge.
? They should not provide their own theory on things. If they do not know the answer that should say so.
? They should not be afraid to correct an earlier answer if later in an interview they realise that it was incorrect.
? They should ask for a copy of any statement or notes for their records.

Managers should not overdo any systems put in place to manage the site?s response to an investigation. There is no need to have a lawyer present for a general site audit and indeed having one present may have a negative effect. However, one always wants one?s site to be prepared in case an unfortunate incident occurs. Such preparation protects not just the company but the interests of individual employees as well.

Author Simon Ball is an ex-quarry manager and now a senior associate specialising in environment and planning law with Minter Ellison Lawyers.

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