Court reinforces the strict requirements of a section 155 Notice under Work Health and Safety laws

A WHS regulator may issue a section 155 notice where it reasonably believes a person is capable of:

• giving information,
• providing documents, or
• giving evidence,

in relation to a possible contravention of the WHS Act or that will assist the regulator to monitor or enforce compliance with the WHS Act. 

Armed with that belief the notice can be given to the person requiring them to do one or more of the following:

• give written information;
• produce specified documents or classes of documents; or
• attend at a stated time and place to answer questions and give evidence.

Section 155 powers are deliberately wide‑ranging. In particular:

• the notice may extend to documents held outside the issuing jurisdiction or off‑site;

• documents need not be confined to an incident itself or to WHS‑labelled material;

• senior management and board‑level documents may be required;

• confidentiality, commercial sensitivity or embarrassment do not justify non‑production; and

• recipients are not entitled to narrow the scope of a notice based on their own assessment of relevance.

Unlike the situation with prohibition and improvement notices, there is no internal or external review rights that apply to a section 155 notice to have it set aside, amended or to extend time for compliance. 

Failure to comply with a section 155 notice without reasonable excuse constitutes a criminal offence. 

The recipient bears the onus of adducing or pointing to evidence that suggests a real possibility that it has a reasonable excuse for failing to comply with the notice. If there is evidence suggesting a reasonable possibility of a reasonable excuse, the regulator must prove beyond reasonable doubt that the exception has no application – in other words, that the excuse is not reasonable.

The existence of a reasonable excuse depends on the circumstances of the case in the context of the compulsory information gathering purpose behind section 155. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person.

Accepted excuses are rare. Courts have rejected excuses based on:

• misunderstanding, oversight or administrative difficulty;

• uncertainty about the meaning or breadth of the notice;

• workload or inconvenience; 

• partial compliance;

• internal approval or governance delays.

Claiming the privilege against self-incrimination is not a reasonable excuse as reliance on the privilege is expressly excluded under the WHS Act. However, it is reasonable to not disclose information or provide documents that are the subject of legal professional privilege.

Courts treat a failure to comply with a section 155 notice as a stand‑alone offence, even where:

• no prosecution for the underlying incident is ultimately pursued; and

• the failure arises from disorganisation, delay or misunderstanding rather than deliberate defiance.

The regulator is not required to remind, prompt or assist a deficient responder.

When a section 155 notice is received, the recipient should:

• strictly and fully comply with each requirement of the notice;
• provide all requested information and documents within their knowledge, possession, custody or control;
• comply within the time, and in the form or manner specified;
• make genuine, proactive and reasonable efforts to locate responsive material; and
• positively establish any claimed 'reasonable excuse', with evidence.